[Orin Kerr] Fifth Circuit rules on whether scanning the magnetic stripe on a card is a search

I’ve blogged twice before about whether it is a Fourth Amendment search for the government to scan the magnetic stripe of a seized credit card. In my view, the answer is yes. But the cases so far are coming out the other way: The Sixth Circuit held that the answer is no, as did a divided Eighth Circuit panel.

The Fifth Circuit has now ruled on the question. In an opinion by Judge Gregg Costa involving gift cards, United States v. Turner, the court agreed with the Sixth Circuit and the Eighth Circuit that scanning the magnetic stripe is not a search.

I’m a fan of Judge Costa’s work, but I think this decision is wrong. I thought I would expand on my prior posts and say more on why it’s wrong — and why I think it matters.

Here’s the Fifth Circuit’s reasoning for why scanning the magnetic stripe is not a search:

A number of [] features [about cards with magnetic stripes] lead us to conclude that there is no reasonable expectation of privacy in the magnetic stripe of a gift card. For starters, the few lines of characters encoded in a gift card are infinitesimally smaller than the “immense storage capacity” of cell phones or computers. Riley, 134 S. Ct. at 2489. The Supreme Court described that capacity as “[o]ne of the most notable distinguishing features of modern cell phones” that had “several interrelated consequences for privacy,” including that “a cell phone collects in one place many distinct types of information—an address, a note, a prescription, a bank statement, a video—that reveal much more in combination than any isolated record.” Id.

Even more important is that the vast gulf in storage capacity between gift cards and cell phones reflects their different purposes. A primary purpose of modern cell phones, and certainly of computers, is to store personal information. See id. at 2489–91. The purpose of a gift card is to buy something. See Alabi, 943 F. Supp. 2d at 1279. The issuer of a gift card places the information on it, which can only be altered using a device that few Americans know about and even fewer own. As one court has put it, “[r]ather than using credit and debit cards to manipulate and store the data contained in the cards’ magnetic strips, individuals and society put to use the magnetic strips by using the data that the issuer encoded on them . . . to facilitate a financial transaction and purchase goods and services.” Id. at 1284.

Another Fourth Amendment consequence flows from the commercial purpose of gift cards. Unlike cell phones and computers, whose function of storing personal information often results in access being restricted by a password, the raison d’être of gift cards means that third party cashiers will often be doing the same swiping that law enforcement did here. DE L’Isle, 825 F.3d at 430 (“[T]he purpose of a . . . 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.”); Bah, 794 F.3d at 633 (“A credit card’s stored information . . . is intended to be read by third parties. That is the only reason for its existence.” (second emphasis added) (quoting United States v. Benjamin, No. 4:14-CR-3089, 2014 WL 5431349, at *11 (D. Neb. Oct. 24, 2014))); see generally Smith v. Maryland, 442 U.S. 735 (1979) (discussing the third party doctrine); United States v. Miller, 425 U.S. 435 (1976) (same).

We thus join the other courts that have considered this issue and conclude that society does not recognize as reasonable an expectation of privacy in the information encoded in a gift card’s magnetic stripe. See Bah, 794 F.3d at 631; DE L’Isle, 825 F.3d at 432; Alabi, 943 F. Supp. 2d at 1285; Medina, 2009 WL 3669636, at *11.

I’ve already blogged at length on why I don’t find this position persuasive, but let me just expand on two points. One is doctrinal, and the other is conceptual.

The do