An En Banc Decision by Chief Judge Kozinski on August 31, 2009 will prove to be an influential decision on Fourth Amendment searches of computers. United States v. Comprehensive Drug Testing, 2009 WL 2605378 (9th Cir. Aug. 26, 2009). “This case is about . . . the procedures and safeguards the federal courts must observe in issuing and administering search warrants and subpoenas for electronically stored information.” Id. at *1.
CDT sets forth new search and seizure rules for the Information Age. Because the seizure of electronic records is becoming more common than paper records, in the opinion, the Ninth Circuit advises that this calls for “greater vigilance on the part of judicial officers in striking the right balance between the government’s interest in law enforcement and the right of individuals to be free from unreasonable searches and seizures.” Id. at *15.
Background
While more detailed facts can be found at United States v. Comprehensive Drug Testing, 513 F.3d 1085, 1089 (9th Cir. 2008), to summarize briefly: in 2002 the federal government began an investigation into the now-infamous Bay Area Lab Cooperative (Balco), which it suspected of providing steroids to professional baseball players. That year, the Major League Baseball Players Association also entered into a collective bargaining agreement with Major League Baseball providing for suspicionless drug testing of all players. A separate company, “Comprehensive Drug Testing” (“CDT”) had been hired by Major League Baseball to test the urine of all professional baseball players for drugs and the players had agreed to undergo these tests with the assurance that the results would remain anonymous and confidential. CDT maintained the list of players and their respective test results; Quest Diagnostics is the company which kept the actual specimens on which the tests were conducted.
During the Balco investigation, federal authorities learned of ten players who had tested positive in the CDT program. Subsequently, the government obtained a grand jury subpoena for all CDT drug testing records and specimens pertaining to Major League Baseball in CDT’s possession.
The same day, the government served a search warrant for records of the ten suspected players at CDT’s facilities in Long Beach. Unlike the subpoena, the warrant was limited to the records of the ten players as to whom the government had probable cause. However, when the warrant was executed, the government seized and reviewed computer records of hundreds of other players in Major League Baseball (and a great many other people). Also, contrary to the search warrant requirements, the government made little or no effort to segregate responsive data in the computer search from records of other drugs tests. As one district judge later put it, the government demonstrated a “callous disregard for the rights of those persons whose records were seized and searched outside the warrant.” Id. at *5.Then, what the government did was use the information obtained from this broad search in support of further subpoenas, demanding production of the same records it had just seized. Ultimately, Judge Illston, of the Northern District of California, quashed this latest round of subpoenas. Id. at *2.
After much litigation and rounds of subpoena-quashing, each of the three district court judges who heard the matters in three different districts expressed “grave dissatisfaction with the government’s handling of the investigation, some going so far as to accuse the government of manipulation and misrepresentation.” Id. at *2. The government appealed all three orders and a majority of a three-judge panel reversed two of the three rulings and endorsed the search and subpoena. This then caused the Ninth Circuit to take the case en banc.
Ninth Circuit Holding
The majority, led by Judge Kozinski, was not pleased with the government’s conduct and went so far as to state, “This was an obvious case of deliberate overreaching by the government in an effort to seize data as to which it lacked probable cause.” Id. at *8. The Court then set forth particular protocols for preventing agents involved in the investigation from examining or retaining any data other than that for which probable cause is shown. Id. at *9. Judge Kozinski also rejected the government’s “plain view” theory which would have allowed agents to go through computer files at will, under the notion that the data is in “plain view.” In future warrant applications, the Chief Judge warns, the government should “forswear reliance on the plain view doctrine.” Id. at *7. If law enforcement balks at such a waiver, the warrant should require initial review by an independent third party under supervision of the court. Id. Next, the majority discussed the duty of candor, stating: “A lack of candor in this or any other aspect of the warrant application shall bear heavily against the government in the calculus of any subsequent motion to return or suppressed the seized data.” Id. at *7
Also, the Court advised that the government must limit computer searches to data identified in the warrant. For example, it can’t run a search for the “hash files” of known illegal files while looking for urine testing records. Id. at *7.Finally, the person segregating the seized data has to be either a specially trained computer personnel who is not the investigating agent, and who promises not convey information about the non-responsive files, or an independent party (like a special master). Id. at *9. Where the search is of a third party’s computer not suspected of any crime (as in this case), “the presumption should be that the segregation will be conducted by . . . an independent third party selected by the court.” Id.
Once the data has been segregated (and, if necessary, redacted), the government agents involved in the investigation may examine only the information covered by the terms of the warrant. Id. at *9. The opinion also outlines additional particulars to be followed.
Summary
CDT sets the stage for the Fourth Amendment’s application in the Information Age. On the last page of its opinion, the majority lists five specific guidelines for searching electronic data: (1) magistrates should insist that the government waive reliance on the plain view doctrine in digital evidence cases; (2) segregation and redaction must either be done by specialized personnel or an independent third party; (3) warrants and subpoenas must disclose the actual risks of destruction of information as well as prior efforts to seize that information in other judicial for a; (4) government’s search protocol must be designed to uncover only the information for which it has probably cause and only that information may be examined by case agents; and (5) the government must destroy or, if the recipient may lawfully possess it, return non-responsive data.
Thus, going forward, this case is the starting point for any electronic search.
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