Constitutional Brief: Eighth Circuit Continues Erosion of Fourth Amendment Privacy Rights
In United States v. DE L’Isle, No. 15-1316 (8th Cir., June 8, 2016), the federal appeals court for a large portion of the mid-west ruled that an individual has no right to privacy in the information contained on the credit card strip or on the face of the card.
Eric-Arnaud DE L’Isle was pulled over by a Nebraska police officer in 2014 for following too closely to a semi. The officer stated he smelled marijuana in the car and conducted a canine search, which indicated the presence of controlled substances. The subsequent search produced no drugs, but the officers did find a duffel bag containing “a large stack of credit, debit, and gift cards” in the trunk. Only about 1/5 of the cards had DE L’Isle’s name on the front. The cards were seized at the stop and then scanned by the U.S. Secret Service, which discovered that the magnetic strips on the cards were either blank or contained American Express account information. Needless to say, none of the information on the magnetic strips was associated with any legitimate account of Eric DE L’Isle.
According to testimony from fraud investigators and U.S. Secret Service agents, the magnetic strip on the back of a credit, debit, or gift card contains up to three lines of information. The first two are omnipresent and consist of the account number, expiration date, and cardholder’s name. The third line is discretionary based on the issuing entity, but can contain a particular identifier.
DE L’Isle argued that the search of the strip constituted an invasion of his 4th Amendment right against the unreasonable search or search of his personal papers and effects. Under existing federal and Supreme Court precedent, this type of claim (contesting whether the search was reasonable) rests on a person’s actual expectation of privacy and on society’s expectation of privacy in the particular situation. In this case, DE L’Isle would need to show that he actually expected his credit card strip information to be private and that society had the same expectation.
The Court expressly rejected his claim that he had an actual expectation of privacy.
Mr. DE L’Isle “could not have had a subjective expectation of privacy in any of the . . . cards because the purpose of a credit card, 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.” Thus, the user of the card “knowingly discloses the information on the magnetic strip . . . to a third party and cannot claim a reasonable expectation of privacy in it.”
Mr. DE L’Isle’s subjective expectation was irrelevant, however, as the 8th Circuit panel found that “this alleged privacy interest is not one society is prepared to endorse.” In a rather broad definition of what is considered to be public, the court found that “any member of the public may see” the information on an individual’s credit card, so the information was therefore considered to be public. (The dissent in the case focused on factual issues, rather than the general privacy issues).
While no one should have any particular sympathy for an individual who was, according to the evidence, clearly intending to engage in a substantial amount of identity theft and credit card fraud. Simply stated, Mr. DE L’Isle belongs in jail. The problem arises in how he ended up there and the implications for individual rights that the court’s needlessly broad analysis casts.
The courts (the 8th Circuit here is only the latest example) have fundamentally misunderstood the 4th Amendment. The protections of the 4th Amendment apply solely to the government (we have criminal statutes to prosecute violations of privacy from individuals against other individuals). Thus, it is entirely irrelevant to a proper 4th Amendment analysis that DE L’Isle offered the information on the card to a merchant. The information on a credit card is inherently private and, generally speaking, individuals only offer that information to a select group of other private entities: merchants and financial institutions who are prohibited from releasing the information to the general public.
Indeed, the crime DE L’Isle is accused of is stealing other individuals’ information. If there is no privacy interest in this “public” information, then what, precisely, is the criminal behavior DE L’Isle was prosecuted for and convicted of? At the time of the search, there was no indication that DE L’Isle actually used the cards or stole any money – he was merely in possession of what the courts apparently view as public information. The government’s criminal charges belie its arguments before the 8th Circuit.
Despite the 8th Circuit’s ruling, credit card information is private information. Entire industries exist to protect that information from other individuals, much less the forcible seizure of that information by the government. Class action lawsuits have been initiated against major companies for negligent handling of information that resulted in hacking. To say that credit card information – even “just” the account numbers – is flawed, to say the least.
Thus, not only did DE L’Isle demonstrate an intent to keep the information private (he kept the cards in a duffel bag and/or wallet to keep them from the view of the general public – and police), but society does, quite obviously, expect credit card accounts, expiration dates, the connected names, and particular identifiers to be kept private.
The courts’ rulings on this issue have been frightening and dangerous, to say the least. An individual’s release of private, personal information to another individual does not, by any stretch of common language or common sense, indicate any intention to make that information public. The court’s interpretation means that any disclosure – to anyone – of information is no longer considered private and, as such, is subject to search by the government without a warrant. This is not hyperbole, but the language of the court: DE L’Isle “knowingly disclose[d] the information on the magnetic strip . . . to a third party and cannot claim a reasonable expectation of privacy in it.”
Simply stated, the courts have been on a dangerous trend that dismissed the need for a warrant where it is evident that a warrant would likely have been issued.
This case is a prime example: large numbers of credit cards without the individual’s name on them stored in a duffel bag in the truck almost guarantee the probable cause needed to obtain a warrant to both seize and search everything in that car, much less the particular cards and their information. Law enforcement only needed to apply for the warrant and there was no exigency demanding immediate action: DE L’Isle was in custody and therefore not putting any more charges on the cards. Knowing the information on the card several hours sooner would not particularly help the victims, either.
The purpose of the exclusionary rule (suppressing illegally obtained evidence) is to discourage law enforcement from obtaining evidence improperly. If the police and prosecutors are confident that their convictions will be overturned when the evidence is improperly gathered, the theory is that they will be more constitutionally careful. Conversely, when law enforcement is comfortable that the court is more interested in upholding convictions it believes are worthy than upholding the Constitution, then they will be less inclined to be concerned about the procedural safeguards offered by the Constitution.
This case is a perfect example of the latter: DE L’Isle was probably engaging in counterfeit. However, the evidence used to convict – the information gathered on the magnetic strips was not DE L’Isle’s – was not properly obtained, even though law enforcement easily could have obtained a warrant once they had possession of the cards (which was almost certainly obtained lawfully, at least according to the facts as outlined here). At the end of the day, the courts here chose to uphold a particular conviction, rather than the Constitution.
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