On the Job 

The 6^th U.S. Circuit Court of Appeals addressed whether an individual has a reasonable expectation of privacy when it comes to the information stored on the magnetic strips on credit, debit and gift cards.

Brief facts: Police officers in Morristown, Tenn., stopped a rental vehicle driven by Mamadou Bah for speeding. Bah was arrested for driving on a suspended license. Officers searched the vehicle before having it towed, as Bah was the only authorized operator of the rental car. The search revealed several cellphones and 68 credit, debit and gift cards in the car. Bah and his passenger were transported to the police department where more cards were recovered from the wallets of both Bah and his passenger. Without a warrant, detectives used a magnetic card reader (“skimmer”) to reveal the information encoded on the magnetic strips of many of the cards. Detectives determined that the majority of the cards had been re-encoded so that the financial information they contained did not match the information printed on the fronts and backs of the cards. Bah and his passenger were charged with production, use, or trafficking in counterfeit devices. Bah sought to suppress the warrantless searches of the magnetic strips on the cards, claiming the reading of the strips with the skimmer violated his Fourth Amendment protection against unreasonable searches.

Court’s findings: The court held that the use of the skimmer to read the cards was not a search for purposes of the Fourth Amendment because the scans did not involve a physical intrusion of a constitutionally protected area, and the scans did not violate the cardholders’ reasonable expectations of privacy. The court explained that the information on the magnetic strips essentially mirrors the information printed on the front and back of the card. Further, because the magnetic strips are routinely read by private parties at gas stations, restaurants and grocery stores, such an expectation of privacy is not one that society is prepared to consider reasonable. When law enforcement has lawful possession of the cards, as they did in this case, there is no separate privacy interest in the magnetic strip.

The court also distinguished these facts from the U.S. Supreme Court’s recent decision in Riley v. California (2014), which held that generally cellphones can’t be searched without a warrant because of “the quantity and quality of personal information that can be obtained from a modern smartphone, and the expectation of privacy an individual may have in such information.” The court in Bah noted that the information gleaned from the cards would not allow officers to reconstruct an individual’s private life, nor was the information highly personal.