Indiana University’s CrimsonCard, a key card, that tracks movement into University buildings and facilities, does not carry a reasonable expectation of privacy. This case arose from an investigation of a hazing incident, and the University was corroborating alleged alibis. There is also video surveillance around the campus. Gutterman v. Indiana University, 2021 U.S. Dist. LEXIS 165841 (S.D.Ind. Sept. 1, 2021):
The Court first considers Plaintiffs’ status and privacy expectations. Plaintiffs allege that they were students at IU when their Swipe Data was accessed, and when they became IU students, they received their CrimonCards and had access to the CrimsonCard Terms and Conditions. The CrimsonCard itself states on the back that the user of the card accepts its terms and conditions, and that the card is the property of IU. [Filing No. 20 at 11.] The CrimsonCard Terms and Conditions state that the CrimsonCard is used “to verify [a student’s] identity and manage access to [IU] services and facilities.” [Filing No. 20-1 at 2.] Given that Plaintiffs were on notice that the CrimsonCard was used to access IU’s services and facilities, and that IU owned the card, it is not reasonable to conclude that Plaintiffs expected their use of the CrimsonCard – which, in turn, reflected which IU facilities and services they accessed – to be private. The Court finds that this is particularly true in today’s day and age, when Plaintiffs were likely carrying cell phones which also could be used to track their locations to some extent, and where cameras on buildings, traffic lights, and businesses were likely to capture many of Plaintiffs’ public movements. While the CrimsonCard does not explicitly state that Plaintiffs were agreeing to IU using the Swipe Data to verify their whereabout at a specific point in time, Plaintiffs were certainly on notice that the CrimsonCard would reflect their movements to some degree.
As for the context in which the search occurred, Plaintiffs allege that IU retains “historical records” of Swipe Data, and “retained the [Swipe Data] for several months and used it to check the alibis of several students – including Plaintiffs.” [Filing No. 1 at 3-4.] But Plaintiffs only allege that Defendants accessed their personal Swipe Data for a limited time period, and for the purpose of checking Plaintiffs’ whereabouts at the time of the hazing incident for which the Beta Theta Pi house was ultimately disciplined. See Naperville Smart Meter Awareness, 900 F.3d at 528 (finding that collection of energy use data was a reasonable search and noting “[c]ritically, Naperville conducts the search with no prosecutorial intent. Employees of the city’s public utility – not law enforcement – collect and review the data”). Plaintiffs do not allege that IU used the Swipe Data to track their movements all around campus, or to track their locations for an extended period of time. The collection of Swipe Data is “far less invasive than the prototypical Fourth Amendment search of a home.” Id. Moreover, the limited nature of Defendants’ use of the Swipe Data, as alleged in the Complaint, indicates that the Swipe Data does not provide “an intimate window into [a student’s] life, revealing…his familial, political, professional, religious, and sexual associations” to the degree the United States Supreme Court has recognized as unreasonable. Carpenter v. U.S., 138 S.Ct. 2206, 2217 (2018). Finally, according to Plaintiffs’ own allegations, the Swipe Data was used to verify Plaintiffs’ whereabouts at the time of the alleged hazing incident, and “as freshmen pledges, [Plaintiffs] would have been far more likely to be the victims of any hazing activity, rather than the perpetrators.” [Filing No. 1 at 4.] In other words, as Plaintiffs allege, the Swipe Data was used to ensure Plaintiffs’ safety by confirming that Plaintiffs were not subjected to hazing – an interest the Court finds to be plainly legitimate. In short, the Court finds that, assuming a search occurred in the first instance, such a search was reasonable based on Plaintiffs’ status as IU students who agreed to the Terms and Conditions of the CrimsonCard, and based on IU’s limited, non-prosecutorial use of the Swipe Data to confirm that Plaintiffs were not present during a hazing incident. The Court GRANTS Defendants’ motion to Dismiss Plaintiffs’ constitutional claims against President Whitten to the extent that they seek prospective injunctive relief.
Remember the students who plastered hate graffiti around a Maryland high school were ratted out by their cell phones connecting with the school wireless noted here.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)