Friday, October 14, 2016

UPDATE: You don't have an expecation of privacy in everything in your wallet in a few more states.

Back in June, we posted about an Eighth Circuit case that held that a scan of the magnetic stripe on the back of a credit card is not a search that would be afforded Fourth Amendment protections. We were, however, optimistic that a strong dissent might win the day in a future case asking the same question.

Well, maybe too optimistic. Yesterday, the Fifth Circuit, in United States v. Turner, similarly held that the scanning of a gift card stripe is not a search under the Fourth Amendment. Although this is not good news for defendants, there are some practical tips that can be taken from this opinion to hopefully help stem the flow of opinions going this direction.

1. Make a thorough record. While this is always important, it is especially important in cases with a technology angle. If you aren't familiar with the technology, the court likely won't be either. We need to employ experts and make sure we are making the best record possible. The Turner Court agrees:

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.

2. Technology is changing. While these opinions are certainly not good on this issue, both opinions spend time reminding us of the changing nature of technology. The new chip readers mentioned in the dissent in Briere De L'Isle aren't at issue in this case, but the opinion mentions them and leaves room for a different outcome with different technology.

So while it is certainly disconcerting to know that we don't have Fourth Amendment protections in items in our own wallets, we can find some solace in knowing that a better record, or some tech advances may save the day in a future case.

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