There is no reasonable expectation of privacy in the magnetic strip on the back of a credit card, here many allegedly fraudulent cards, because the whole idea is that the magnetic strip is read every time the card is used. It has to be to work. Thus, there is less of a reasonable expectation of privacy in a fraudulent one. United States v. DE L’Isle, 2016 U.S. App. LEXIS 10345 (8th Cir. June 8, 2016):
DE L’Isle argues that reading the magnetic strips on the back of the cards was a search in violation of his Fourth Amendment rights because the strip contains information about the account. According to DE L’Isle, this is the type of information that the Supreme Court would consider a legitimate privacy interest. Given the facts of this case, we disagree.
The Fourth Amendment gives people the right “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. “[T]he ultimate touchstone of the Fourth Amendment is ‘reasonableness.'” Riley v. California, 134 S. Ct. 2473, 2482 (2014) (quoting Brigham City v. Stuart, 547 U.S. 398, 403 (2006)), cert. denied, Riley v. California, 136 S. Ct. 506 (2015). A search is reasonable if the officer has a valid search warrant or if the search fits within a specific warrant exception. Id. It is clear that a physical intrusion or trespass by a government official constitutes a search within the meaning of the Fourth Amendment. United States v. Jones, 132 S. Ct. 945, 949 (2012). However, “a violation [can also] occur[] when government officers violate a person’s ‘reasonable expectation of privacy.'” Id. at 950 (quoting Katz v. United States, 389 U.S. 347, 360 (1967)). For this type of violation, the claimant must show both “an actual (subjective) expectation of privacy, and . . . that the expectation [is] one that society is prepared to recognize as ‘reasonable.'” Katz, 389 U.S. at 361. Thus, “[o]fficial conduct that does not ‘compromise any legitimate interest in privacy’ is not a search subject to the Fourth Amendment.” Illinois v. Caballes, 543 U.S. 405, 408 (2005) (quoting United States v. Jacobsen, 466 U.S. 109, 123 (1984)).
First, scanning the magnetic strips on the cards was not a physical intrusion into a protected area prohibited by the Fourth Amendment. See Florida v. Jardines, 133 S. Ct. 1409, 1417 (2013). The magnetic strip on the back of a debit or credit card is a type of “external electronic storage device, [that] is designed simply to record the same information that is embossed on the front of the card.” United States v. Medina, No. 09-20717-CR, 2009 WL 3669636, at *10 (S.D. Fla. 2009). Accordingly, the information embossed on the front of the card and recorded in the magnetic strip will only be different if the card has been tampered with. Id. Credit card readers reveal whether the information in the magnetic strip on the back of the card matches the information on the front. Id. The process of using a credit card reader “is analogous to using an ultraviolet light to detect whether a treasury bill is authentic, … [which is not a] … ‘search.'” Id. Thus, because “sliding a card through a scanner to read virtual data does not involve physically invading a person’s” space or property, there was no Fourth Amendment violation under the original trespass theory of the Fourth Amendment. United States v. Alabi, 943 F. Supp. 2d 1201, 1265 (D.N.M. 2013).
Second, DE L’Isle failed to show that he had a reasonable expectation of privacy under Katz, which requires a showing of both a subjective expectation of privacy and an objective expectation of privacy that society recognizes as reasonable. Katz, 389 U.S. at 361. Although DE L’Isle claims he had an actual, subjective privacy interest in the cards, he is unable to make that case. As to the ten American Express credit cards, he could not have had an expectation of privacy simply because his name was embossed on the front of the cards. He also could not have had a subjective expectation of privacy in any of the other cards because the purpose of a credit, debit, or 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. Medina, 2009 WL 3669636, at *11. Information is transferred to the seller “by manually inputting the information on the front of the card or swiping the card through a machine that reads the magnetic strip on the back.” Id. When the holder uses the card he “knowingly disclose[s] the information on the magnetic strip of his credit card to a third party and cannot claim a reasonable expectation of privacy in it.” Id.
Even if DE L’Isle had an actual, subjective expectation of privacy in the information found in the magnetic strips on the cards, this alleged privacy interest is not one society is prepared to endorse. In the normal course, all of the information found in the magnetic strips on American Express credit cards is identical to the information in plain view on the front of the cards. “Society is not prepared to recognize as legitimate an asserted privacy interest in information in plain view that any member of the public may see.” Alabi, 943 F. Supp. 2d at 1276. Even less convincing is the situation in this case where the magnetic strips on the American Express credit cards were empty. If society does not recognize a privacy interest in readily visible information, DE L’Isle certainly cannot assert a privacy interest in information that is nonexistent.
When the information contained in the magnetic strip differs from the information on the front of the card, there is another possible issue that diminishes DE L’Isle’s purported privacy interest. According to Agent Wadding, the only reason a person re-encodes the magnetic strip on the back of a card is to “mask that they have a card number.” Society is even less likely to recognize as reasonable DE L’Isle’s “subjective expectation of privacy in the information stored on [the] credit and debit cards’ magnetic strips [when] the evidence shows [that it] would only be different from the information embossed on the outside of the card if the intent is to engage in a crime.” Id. at 1287. American Express credit cards with no information in the magnetic strips, and debit and gift cards that have been re-encoded with new information in the magnetic strips, are counterfeit cards. The evidence strongly suggests that DE L’Isle intended to engage in credit card fraud and identity theft. “[G]overnmental conduct that only reveals the possession of contraband ‘compromises no legitimate privacy interest.'” Caballes, 543 U.S. at 408 (quoting Jacobsen, 466 U.S. at 123). Thus, because scanning the magnetic strips on the cards was the government’s way of revealing DE L’Isle’s possession of contraband, the counterfeit cards, there was no violation of a legitimate privacy interest and accordingly, no search within the meaning of the Fourth Amendment.
