I’ve blogged twice before about whether it is a Fourth Amendment search for the government to scan the magnetic stripe of a seized credit card. In my view, the answer is yes. But the cases so far are coming out the other way: The Sixth Circuit held that the answer is no, as did a divided Eighth Circuit panel.

The Fifth Circuit has now ruled on the question. In an opinion by Judge Gregg Costa involving gift cards, United States v. Turner, the court agreed with the Sixth Circuit and the Eighth Circuit that scanning the magnetic stripe is not a search.

I’m a fan of Judge Costa’s work, but I think this decision is wrong. I thought I would expand on my prior posts and say more on why it’s wrong — and why I think it matters.

Here’s the Fifth Circuit’s reasoning for why scanning the magnetic stripe is not a search:

A number of [] features [about cards with magnetic stripes] lead us to conclude that there is no reasonable expectation of privacy in the magnetic stripe of a gift card. For starters, the few lines of characters encoded in a gift card are infinitesimally smaller than the “immense storage capacity” of cell phones or computers. Riley, 134 S. Ct. at 2489. The Supreme Court described that capacity as “[o]ne of the most notable distinguishing features of modern cell phones” that had “several interrelated consequences for privacy,” including that “a cell phone collects in one place many distinct types of information—an address, a note, a prescription, a bank statement, a video—that reveal much more in combination than any isolated record.” Id.
Even more important is that the vast gulf in storage capacity between gift cards and cell phones reflects their different purposes. A primary purpose of modern cell phones, and certainly of computers, is to store personal information. See id. at 2489–91. The purpose of a gift card is to buy something. See Alabi, 943 F. Supp. 2d at 1279. The issuer of a gift card places the information on it, which can only be altered using a device that few Americans know about and even fewer own. As one court has put it, “[r]ather than using credit and debit cards to manipulate and store the data contained in the cards’ magnetic strips, individuals and society put to use the magnetic strips by using the data that the issuer encoded on them . . . to facilitate a financial transaction and purchase goods and services.” Id. at 1284.
Another Fourth Amendment consequence flows from the commercial purpose of gift cards. Unlike cell phones and computers, whose function of storing personal information often results in access being restricted by a password, the raison d’être of gift cards means that third party cashiers will often be doing the same swiping that law enforcement did here. DE L’Isle, 825 F.3d at 430 (“[T]he purpose of a . . . gift card is to enable the holder of the card to make purchases, and to accomplish this, the holder must transfer information from the card to the seller, which negates an expressed privacy interest.”); Bah, 794 F.3d at 633 (“A credit card’s stored information . . . is intended to be read by third parties. That is the only reason for its existence.” (second emphasis added) (quoting United States v. Benjamin, No. 4:14-CR-3089, 2014 WL 5431349, at *11 (D. Neb. Oct. 24, 2014))); see generally Smith v. Maryland, 442 U.S. 735 (1979) (discussing the third party doctrine); United States v. Miller, 425 U.S. 435 (1976) (same).
We thus join the other courts that have considered this issue and conclude that society does not recognize as reasonable an expectation of privacy in the information encoded in a gift card’s magnetic stripe. See Bah, 794 F.3d at 631; DE L’Isle, 825 F.3d at 432; Alabi, 943 F. Supp. 2d at 1285; Medina, 2009 WL 3669636, at *11.

I’ve already blogged at length on why I don’t find this position persuasive, but let me just expand on two points. One is doctrinal, and the other is conceptual.

The doctrinal point is that it is hard to square with the Supreme Court’s reasoning in Arizona v. Hicks, 480 U.S. 321 (1987). Specifically, Part II of Hicks considered whether an officer “searched” a turntable when he moved it slightly to see the serial numbers printed on the bottom. (The officer came across the turntable in an apartment he had entered under exigent circumstances; he thought the turntable likely was stolen, so he moved it to get the serial number to check.) The officer’s act was not likely to reveal a lot of information, and the only information was the manufacturer’s information about the serial number. Nonetheless, the Court ruled that moving the turntable was a search:

Officer Nelson’s moving of the equipment, however, did constitute a “search” separate and apart from the search for the shooter, victims, and weapons that was the lawful objective of his entry into the apartment. Merely inspecting those parts of the turntable that came into view during the latter search would not have constituted an independent search, because it would have produced no additional invasion of respondent’s privacy interest. See Illinois v. Andreas, 463 U. S. 765, 771 (1983). But taking action, unrelated to the objectives of the authorized intrusion, which exposed to view concealed portions of the apartment or its contents, did produce a new invasion of respondent’s privacy unjustified by the exigent circumstance that validated the entry. This is why, contrary to JUSTICE POWELL’S suggestion, post, at 333, the “distinction between `looking’ at a suspicious object in plain view and `moving’ it even a few inches” is much more than trivial for purposes of the Fourth Amendment. It matters not that the search uncovered nothing of any great personal value to respondent — serial numbers rather than (what might conceivably have been hidden behind or under the equipment) letters or photographs. A search is a search, even if it happens to disclose nothing but the bottom of a turntable.

I think it’s difficult to distinguish the magnetic stripe cases from Hicks. The “few lines of characters” in a magnetic stripe contain around the same amount of information that would typically be found under a turntable, so the quantity argument doesn’t work. And serial numbers aren’t personal information, either. They are just meaningless numbers assigned by a company that most users don’t know about and would never care to see. They contain less personal and revealing information than the personal name and other information typically stored in a magnetic stripe.

Further, the fact that credit card numbers are stored in order to be revealed when they are used is irrelevant to the lawfulness of access when they are not being used. Perhaps an analogy to traditional property might help make the point. Instead of credit cards, think of cash. I keep cash in my wallet so I can give that cash to third parties in exchange for goods and services. “The raison d’être” of keeping cash in my wallet is to hand it over to “third party cashiers” in a commercial exchange, relinquishing all rights in the cash. And yet it’s a search for the police to open up a closed wallet. See, e.g., United States v. Rivera-Padilla, 365 Fed.Appx. 343 (3d Cir. 2010) (opening a “closed wallet is an unreasonable search under the Fourth Amendment unless it is justified by one of the recognized exceptions to the warrant requirement”).

Like moving the turntable in Hicks, or opening the closed wallet in Rivera-Padilla, scanning a magnetic stripe on the back of a card “expose[s] to view concealed portions of the [item] or its contents” and is therefore a search.

Second, you might ask, why does it matter? It might seem like this is a really minor question. But I think there’s an important concept in play, and it’s a concept that has come up in a lot of recent cases. I’m thinking of the cases from the Playpen litigation on whether accessing an IP address in a target computer is a search, as well as the recent Georgia case on whether calling 911 from a locked phone is a search. In all of these cases, the government forced information stored from inside an electronic storage device owned by the defendant and brought that information into the government’s possession. In all of the cases, the information was pretty limited, and in all of the cases the courts had to consider whether forcing the revealing of the information was a search.

A surprising number of courts have said these acts are not searches because they have wrongly focused on the nature of the information obtained rather than how it was obtained. That is leading courts to say that accessing only limited information from inside an electronic storage device is not a search at all. According to these decisions, only retrieving a lot of or particularly important information qualifies as a search.

Not so. As I explained in this 2005 article, I think this is a classic Fourth Amendment search: It’s forcibly exposing information from inside a person’s Fourth Amendment effects, which is as core of a search as you can get. There are some limited contexts where the nature of the information is relevant to the search analysis, but the usual rule, as seen in Hicks, is that the kind or amount of information obtained is irrelevant. The Fourth Amendment protects all “effects” from searches, and there is no de minimis doctrine where breaking in just to get a few small things does not constitute a search.

Having such a bright-line rule matters, among other reasons, because the bright line keeps courts from eroding Fourth Amendment protections. If a little bit of a search is not a search at all, then courts have the discretion in individual cases to say that this particular case involves so little information that it’s not a search. Because most Fourth Amendment litigation involves the exclusionary rule, and most judges are very reluctant to exclude evidence, such a case-by-case standard puts pressure on courts to take expansive views of the de minimis exception. Maintaining Fourth Amendment protections requires a bright-line rule, and under that bright line rule every compelled access into a suspect’s electronic storage device should be a search.

With three circuits ruling on the question in just the last eighteen months, and with all of them holding that scanning isn’t a Fourth Amendment search, I suspect we’ll see more cases soon from other circuits that will grapple with the same question. Perhaps a circuit split will surface down the road.

As always, stay tuned.

UPDATE: A quick search of the Westlaw “cta-briefs” database suggests that the issue is pending before the First Circuit in United States v. Hillaire, No. 15-1692 (appellant’s brief filed June 20, 2016).