We Should Be Wary of Using Card Readers to Expand Civil Forfeiture Practices
While some jurisdictions have been eager in the last several years to pass legislation seeking to curb civil forfeiture—Florida and Nebraska have most recently reformed their systems—law enforcement authorities in Oklahoma have recently acquired technology that instead expands their ability to seize and keep property suspected of criminal involvement, without necessarily levying criminal charges against the owner or securing a criminal conviction.
As Oklahoma Watch reports, the Oklahoma Department of Public Safety has purchased readers capable of confiscating funds held on pre-paid debit cards, “to aid troopers in roadside seizures of suspected drug-trafficking proceeds”:
“The portable card scanners are designed to be carried in law enforcement vehicles, allow troopers to freeze and seize money loaded onto a prepaid debit card, and to return money to an account whose funds were seized or frozen.
“The vehicle-mounted scanners are also capable of retrieving and storing limited account information from other cards as well, such as banking debit cards, credit cards and “payment account information from virtually any magnetic stripe card,” according to the website and patent documents of the device manufacturer, Texas-based ERAD Group Inc. ERAD stands for Electronic Recovery and Access to Data.”
Law enforcement officials say, according to the report, that the card readers are an “essential” part of the “arms race” between them and drug traffickers, who are using pre-paid debit cards to transport the fruits of their illegalities, as opposed to carrying cash. With these new readers, police will now be able seize not only physical currency, but also place holds on financial accounts tied to the cards.
Not everyone is praising the acquisition, however:
“Brady Henderson, legal director for ACLU Oklahoma, said the new tactic could easily run afoul of the Fourth Amendment and land the issue in court.
“I think this is likely to expand pretty radically the scope of civil asset forfeiture procedures,” Henderson said. “This is a capability that law enforcement has never had before and one that is very likely to land DPS in litigation.”
At first blush, there’s a certain logic that law enforcement has in their favor by using such card readers. By utilizing pre-paid cards instead of cash, it would appear that drug dealers are getting crafty in how they move large sums of money around so as to minimize suspicion surrounding their activities. Employing card readers would simply be—from the perspective of law enforcement—an attempt to level the playing field; a new tool against criminals whose techniques for avoiding prosecution are constantly in flux.
However, those who are already skeptical about the constitutional validity of civil forfeiture to begin with have plenty of legitimate cause for concern surrounding these card readers, as well. While no one wants bona fide criminals to be able to enjoy the fruits of their illicit behavior, unfortunately, they’re not the only ones who have been subjected to forfeiture laws. We’ve already seen myriad examples in which otherwise innocent, law-abiding individuals—never charged with, let alone convicted of, a crime—have nonetheless had their property seized by law enforcement agencies, including large amounts of money merely suspected of being tied to drug activity. There’s little reason to believe that the introduction of card readers, readily capable of freezing and transferring assets to government coffers, wouldn’t be subject to the same potential for abuse.
Additionally, while an individual carrying dozens of pre-paid cards loaded with cash in their vehicle does arouse a sense of curiosity, if not outright suspicion, it’s still worth noting: whether an individual carries $16,000 in paper currency, or $16,000 worth of pre-paid cards, that activity is not per se illegal. It may yet be true that a significant number of people who do so are indeed involved in drug dealing or distribution, or other illegalities. However, a constitutional presumption of innocence always obtains, which is why any duty of the individual to prove “it belongs to him for legitimate reasons,” as Lt. John Vincent of the Oklahoma Highway Patrol suggests, is quite perverse. Hindrance or not, constitutional protections apply to everyone, and the burden should fall on government to prove someone has committed a crime.
Most officers use forfeiture legitimately towards its stated purpose—crime-fighting. However, given the largely weak protections nationwide for innocent property owners, and the profit motive built into state statutes delineating that forfeited assets usually end up with the seizing agency, the practice is still ripe for abuse. Further, the sheer amount of assets forfeited nationwide without convictions forestalls any suggestion that “it’s just a few bad eggs” that we keep hearing about. Civil forfeiture—and abuses committed under its banner—is more pervasive than proponents are willing to admit. Given this fact, we should cast a wary eye at tools such as automated card readers that expand forfeiture’s use.