CA5 follows CA6 & CA8: No REP on magnetic strip on back of gift cards

“The central issue in this case is whether a law enforcement officer’s scanning of the magnetic stripe on the back of a gift card is a search within the meaning of the Fourth Amendment. We join two other circuits in holding that it is not.” Follows CA6 & CA8. United States v. Turner, 2016 U.S. App. LEXIS 18480 (5th Cir. Oct. 13, 2016):

At this point, it is helpful to describe the electronic information encoded in the typical gift card. The record lacks much detail about this, a deficiency that hurts Turner as he bears the burden of establishing a privacy interest. Useful information can be found, however, in other cases addressing whether scanning credit or gift cards amounts to a search. One such court has explained that the typical magnetic stripe has “three data strips which hold only 79 alphanumeric characters, 40 numeric characters, and 107 numeric characters, respectively.” See United States v. Bah, 794 F.3d 617, 633 (6th Cir. 2015). For credit cards, most of which have more information than a gift card, that limited space usually contains the “account number, a bank identification number, the card’s expiration date, a three digit ‘CSC’ code, and, at times, the cardholder’s first and last name.” Id. at 630. Of course, it is the issuing institution, not card users, that initially codes and stores this information on the magnetic stripe. See United States v. Alabi, 943 F. Supp. 2d 1201, 1279 (D. N.M. 2013). Users do have the ability to re-encode the cards, but need an uncommon device to do so. See id. at 1284. The time and expense it takes to purchase and use a re-encoding device to change at most a few lines of characters means it will rarely be worth doing for a lawful purpose. Id. at 1284-85; Bah, 794 F.3d at 632; United States v. DE L’Isle, 825 F.3d 426, 432-33 (8th Cir. 2016). The incentive to re-encode exists, however, when a fraudster changes the account number encoded in a gift card to match one with a higher balance than the card he purchased or counterfeited. See Alabi, 943 F. Supp. 2d at 1284-85.