Comprehensive Drug Testing | PogoWasRight.org

Without rehearing, Comphrensive Drug Testing is going to SCOTUS

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Nov 302009

John Wesley Hall Jr. of FourthAmendment.com provides a pointer to materials on the Comprehensive Drug Testing case involving major league baseball players that begins:

In the Ninth Circuit’s controversial, from the government’s standpoint, Comprehensive Drug Testing case, the Solicitor General’s petition for real en banc rehearing is here and here. Anybody who is interested in computer search cases will find it quite interesting.

Hall quotes from Orin Kerr‘s commentary on the case and offers his own:

[...]

I agree with Mr. Kerr that part of the brief is a “the sky is falling” argument, and the example the government gives, the reference to the child sexual abusers, is over the top. I just cannot believe that the government did not press forward with that search warrant because it is so easily alleged in the affidavit and shown in the warrant exactly what they wanted. If I were a cynic, I would say that the government manipulated these facts just to create for itself an argument that did not have to exist, almost like they planned to use the example in Washington for a petition for rehearing. Never in the history of the Fourth Amendment has a federal agent been so allegedly solicitous of the rights of an accused. They had the state officers willing to assist, so they create a strawman argument.

Nevertheless, this case has “cert granted” written all over it if the government asks.

[...]

Obama Wants Computer Privacy Ruling Overturned

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Nov 252009

David Kravets reports:

The Obama administration is seeking to reverse a federal appeals court decision that dramatically narrows the government’s search-and-seizure powers in the digital age.

Solicitor General Elena Kagan and Justice Department officials are asking the 9th U.S. Circuit Court of Appeals to reconsider its August ruling that federal prosecutors went too far when seizing 104 professional baseball players’ drug results when they had a warrant for just 10.

The 9th U.S. Circuit Court of Appeals’ 9-2 decision offered Miranda-style guidelines to prosecutors and judges on how to protect Fourth Amendment privacy rights while conducting computer searches.

[...]

The government is asking the court to review the case with all of its 27 judges, which it has never done. If the court agrees to a rehearing, a new decision is not expected for years, and the August decision would be set aside pending a new ruling. Either way, the U.S. Supreme Court has the final say.

The controversial decision, which the government said was contrary to Supreme Court precedent, outlined new rules on how the government may search computers. (.pdf)

Feds ask appeals court to stay drug decision

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Sep 022009

USA Today has a story by Ronald Blum of the Associated Press reporting that federal prosecutors have asked an appeals court to stay its decision [pdf] that government agents illegally seized the drug testing records and samples of more than 100 major league baseball players (see this post for previous coverage of the decision and its implications). Blum reports:

In a filing late Monday with the 9th U.S. Circuit Court of Appeals, the U.S. attorney’s office in San Francisco said the Solicitor General, in consultation with the criminal division of the Justice Department and the U.S. attorney’s office, was considering whether to ask the Supreme Court to review the decision.

Feds improperly seized results of MLB drug tests

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Aug 272009

Federal officials improperly seized a list of 104 Major League Baseball players who tested positive for steroids in 2003, the 9th Circuit ruled. Agents had a search warrant for drug-test results for 10 players, but found a list of 104 players who had tested positive for performance-enhancing drugs in 2003. Officials used the longer list to get more search warrants, copied the entire computer directory and recorded all the players’ names.

The government should have taken only the results of the 10 players listed on the search warrant, the 9th Circuit ruled.

The case springs from the 2004 raid on a Long Beach, Calif., testing facility, during the investigation of the Bay Area Laboratory Co-Operative, which was suspected of providing steroids to players.

Read more on Courthouse News.

This case is about much more than baseball. As the court points out, it has implications for the seizure of electronic records and the issues that arise when the government seizes more than what a warrant specifies.

This case is about a federal investigation into steroid use by professional baseball players. More generally, however, it’s about the procedures and safeguards that federal courts must observe in issuing and administering search warrants and subpoenas for electronically stored information.

[...]

Throughout, we take the opportunity to guide our district and magistrate judges in the proper administration of search warrants and grand jury subpoenas for electronically stored information, so as to strike a proper balance between the government’s legitimate interest in law enforcement and the people’s right to privacy and property in their papers and effects, as guaranteed by the Fourth Amendment.

You can read the court opinion and dissenting opinion here (pdf)

Update: The Sacramento Bee also has coverage of this decision, as does Threat Level. I expect that there will be a lot of coverage on this decision.

Update 2: See Simple Justice and The Volokh Conspiracy for some good commentary and analysis of the decision.