Being pulled over by the police can be a harrowing experience, but it becomes undeniably more distressing when the police can wrongly assume you’re a criminal and take your cash from you as if it’s drug money. That can happen under the practice of civil asset forfeiture, and it might have just gotten a lot worse.
It’s been reported that Oklahoma Highway Patrol (OHP) is currently using a device called the Electronic Recovery and Access to Data machine (ERAD), which lets the police scan prepaid debit cards and seize the money on them if they suspect it’s from criminal sources. This isn’t drug money taken away after a criminal conviction, this isn’t a huge wad of cash you had sitting in your lap when you got pulled over, this is the police saying “there’s a criminal” and seizing the money on your prepaid cards.
Prepaid debit cards are used by people who don’t have bank accounts but want the convenience of paying for things with a card. They’re typically used by low income Americans. You load the thing up with money, then you can use however much money you put on the card.
They’re pretty common, with prepaid card companies reporting $220 million in sales in 2014 and a 50 percent increase in their use between 2012 and 2014. Furthermore, many people get paid by their employer using prepaid cards.
The OHP has been using the ERAD device for over a year, without most of the public knowing it, and there could be major constitutional problems at play here.
Matt Miller, managing director at the Institute for Justice, told The Daily Beast that many people use prepaid cards as if they are bank accounts, and an officer scanning your prepaid card is essentially getting access to what you use for a bank account. “I think that's hugely constitutionally problematic,” Miller said. “There's a huge Fourth Amendment concern there, because you're just accessing someone's bank account without a warrant.”
An Eighth Circuit court has ruled it’s not unconstitutional for law enforcement to swipe a card, but that issue could still be taken up by the Supreme Court if another circuit court disagrees.
To be clear, these devices cannot be used to seize money from traditional bank accounts, but don’t worry, they tried to make that happen.
“One of the things we recently discovered, just in the last couple of days in looking at the original contract documents, is that Oklahoma's Department of Public Safety, the Highway Patrol's oversight agency, actually tried specifically to get that ability,” Brady Henderson, legal director at the ACLU of Oklahoma, told The Daily Beast.
Henderson said commissioner of Oklahoma’s Department of Public Safety held a press conference after it got out the Highway Patrol was using these devices, and he assured people that these devices cannot access bank accounts, but he never mentioned that they had tried to make that possible. It must have slipped his mind.
A representative from the Oklahoma Highway Patrol told The Daily Beast they could not comment on if the agency tried to get the ability to access traditional debit cards.
The department has temporarily suspended the use of these devices, but the commissioner seemed adamant that they must be used again in the near future. He claims they’re too useful for identifying fraudulent card use.
The commissioner also confirmed that law enforcement divisions in at least 25 states have ERAD devices. Miller explained that there is further evidence of the possible widespread use of these devices, as the Department of Homeland Security already has a training video focused on the ERAD device, meaning it could be a major program. Why the Department of Homeland Security is involved is anyone’s guess.
Miller compared the ERAD to the Stingray cellphone surveillance devices used across the country, which were deployed by police department years before anyone knew about them. Once one police department gets a new piece of technology, others tend to follow.
“My suspicion is that as people move away from cash, law enforcement is trying to keep up,” Miller said. Civil asset forfeiture programs can be highly lucrative for police departments.
One of the strangest things about police using this technology is it might not technically be legal, and that concern hasn’t even been addressed yet. Henderson explained that it’s actually a felony in Oklahoma to take someone’s debit card, including a prepaid debit card, and do any kind of fund transfer without the card holder’s authorization. “Every trooper who would then do that at the side of the road would be committing that felony,” Henderson said. “It's as if the Highway Patrol never thought about things like that.”
A lawyer from Oklahoma’s Department of Public Safety said they do not believe using the ERAD would be a crime, because the funds are only seized at first and cannot be used until there’s been a court order that allows that.
When those in charge of enforcing the law are the ones standing on shaky legal ground, the thin line between defending the law and breaking it is blurred.