“A Search Is a Search”: Scanning a Credit, Debit, or Gift Card Is a Search Under the Fourth Amendment

Abstract

On May 18, 2017, the U.S. Court of Appeals for the First Circuit, in United States v. Hillaire, joined the Fifth, Sixth, and Eighth circuits in holding that the government’s act of scanning the magnetic stripes of lawfully seized credit, debit, or gift cards to access the information encoded therein is not a search within the meaning of the Fourth Amendment. In each case, the courts concluded that an individual is precluded from claiming a reasonable expectation of privacy in the electronic information encoded on a card’s magnetic stripe. This Note provides an overview of how Fourth Amendment jurisprudence has evolved in light of advances in technology and introduces the current standard by which courts determine whether governmental conduct amounts to a Fourth Amendment search. This Note goes on to argue that both existing precedent on Fourth Amendment search determinations and the technological realities of the modern world should allow an individual to claim a reasonable expectation of privacy in this information. Accordingly, scanning the magnetic stripe of a card to access its encoded information should be considered a Fourth Amendment search.