Gov. Fallin delays implementation of Highway Patrol program using card ‘readers’ in asset forfeiture
Published: June 18th, 2016
OKLAHOMA CITY – After more than a week of mounting controversy, Oklahoma Gov. Mary Fallin has delayed implementation of a Department of Public Safety (DPS) program that would allow law enforcement officials easily to read magnetic strips on credit, debit and gift cards.
DPS purchased a total of 20 card reader devices – assigning 16 of those to Highway Patrol officers — and had begun training on how to use them to secure assets (cash) on bank cards, debit cards and gift cards in instances where illegal activity (usually drug trafficking and transport) is suspected.
DPS Commissioner Michael Thompson said (as paraphrased in a June 17 release from Gov. Mary Fallin’s office) “that before troopers may use the readers, they must have reasonable suspicion to believe a crime has occurred. Troopers typically would not use the devices unless a motorist was stopped traveling with dozens of cards.” Thompson also serves as Cabinet Secretary of Safety and Security.
Oklahoma Watch reporter Clifton Adcock’s reporting earlier this month (June 7, 9 and 10) first unveiled news of the credit card reader devices, pointing out DPS planned to use the emerging technology in asset forfeiture proceedings.
In a June 7 story, Adcock reported, “The new devices will now allow law enforcement to not only seize money in physical possession of a person being stopped, but from a financial institution holding the money loaded onto a prepaid card as well.
The Oklahoma Watch website describes the organization as “a nonprofit, tax-exempt, 501(c)(3) corporation whose mission is to produce in-depth and investigative journalism on public-policy and quality-of-life issues facing the state.”
DPS Commissioner Thompson had ardently defended use of the technology over the past week, insisting there were no plans to employ the devices in circumstances other than seizures flowing from authorized searches of vehicles when officers suspected drug trafficking.
However, M. Scott Carter, an analyst with the American Civil Liberties Union (ACLU) – Oklahoma, had disclosed that DPS officials initially sought to include access to bank account and routing numbers as it fashioned a contract with the ERAD Group Inc., a Texas manufacturing company that invented the technology. (ERAD stands for Electronic Data Recovery and Access to Data.)
Carter, formerly state Capitol reporter for The Journal Record, an Oklahoma City business newspaper, briefly worked for Oklahoma Watch before joining ACLU-Oklahoma late last year.
In a document provided from ACLU, Carter detailed provisions of a 199-page contract between DPS and ERAD explicitly requesting a means to access individual “banking information (account number, routing number) so that officials could potentially freeze accounts.
Carter reported the original “Solicitation Specifications” from DPS asked ERAD to “provide a fully functional solution that allows law enforcement to read and manage data (seize, freeze or return funds) from cards with magnetic stripes containing account numbers and cash balances at the time of contact.” The company replied such capability could not be provided under the law. The ERAD Group said additional information prepaid access cars was only “available via subpoena sent directly to the issuing financial institution” – although the firm said it would assist DPS in such a process.
DPS officials, as Carter detailed, acknowledged “the need to use a subpoena for banking information and withdrew the request for access to banking account information and routing numbers.”
Carter’s chronicle of the situation became the basis for a June 14 press release from the state ACLU.
DPS and ERAD contend the technology is allowed under existing court precedents interpreting provisions in the Bill of Rights. Defenders of the program pointed to a case involving 83 Walmart gift cards onto which illegal drug sale proceeds had been loaded.
However, Brady Henderson – legal director for ACLU Oklahoma – told Adcock that use of the devices “is likely to expand pretty radically the scope of civil asset forfeiture procedures. This is a capability that law enforcement has never had before and one that is very likely to land DPS in litigation.”
In a June 9 letter, Oklahoma Watch’s Adcock reported, Derek Goldberg of Peak Power & Manufacturing, a Florida company building and installing automated manufacturing equipment, had banned employees from traveling through the Sooner State while looking “forward to the time when … Oklahoma discontinues this practice.”
Some initial responses to news reports hinted the emerging ability for law enforcement to snag debit cards was surprising, even in this age of high-tech government efforts to counter terrorism, international drug trafficking and other illegal activity.
However, the stories from Oklahoma reporters have clarified that use of the technology, according to T. Jack Williams, ERAD Group president and inventor of the devices, is actually widespread. Although he declined to give reporter Adcock a precise count for the number of law enforcement agencies employing the technology, Williams said, “I can tell you it’s in the hundreds.”
The contract provisions, obtained and reported by Oklahoma Watch, said DPS would pay a $5,000 implementation charge and $1,500 training charge. The ERAD group would, Adcock reported, receive a 7.7 percent “cut” of funds seized using the card readers. The prepaid card readers were installed in May, according to the DPS public information officer.
In interviews with reporters, Thompson has said at least 25 states are using the ERAD technology.
Recent events come in the aftermath of an unsuccessful effort to reform asset forfeiture provisions. State Sen. Kyle Loveless, R-Oklahoma City, pressed a measure this year he called the Personal Asset Protection Act. After meeting with district attorneys and other law enforcement officials, Loveless began the legislative session in February hopeful of gaining passage for his measure. However, the measure died in committee after law enforcement officials broke strongly against it.
Concerning the ERAD revelations, Adcock reported Sen. Loveless’ reaction early in June: “Until this, we didn’t even know these things were in existence. It’s scary to know that technology even exists and that government agencies are using it without an arrest, without a warrant.” State Rep. Cory Williams, D-Stillwater, told Carter the new program was “deplorable.”
Adcock reports that Rep. Mark Lepak, R-Claremore, has asking for a legislative Interim Study on the use of the card-reader devices and other methods of civil asset forfeiture. In his written request for the study, Lepak said, “The idea here is to get both sides in the same room.”
On Friday, Gov. Fallin ordered Thompson to delay use of the ERAD devices, saying, “The Department of Public Safety needs to formulate a clear policy for using this new technology. It can be a viable tool for law enforcement only if authorities are able to ensure Oklahoma motorists and others driving through our state that it will be used appropriately.”
Note: Editor Patrick B . McGuigan contributed to this report.