Sep 152010
 
 September 15, 2010  Court, Surveillance

Lee Tien of EFF comments on the recent Ninth Circuit revised opinion in United States v. Comprehensive Drug Testing (the BALCO decision).   The general public will remember the case as the one in which the government swooped in and grabbed everything that wasn’t nailed done in searching for evidence that 10 major league baseball players had used steroids.  Many other players, who were not named as targets of the investigation, found their drug testing records in the hands of the government who then viewed everything as being in “plain view” and usable.    In response, the courts had criticized the government for misrepresenting risks to judges and over-reaching, and had established procedures for searching and seizing digital evidence that might be aggregated with other data.  In doing so, the court had established new Ninth Circuit guidelines going forward that updated and replaced its current standards established in the pre-digital age in the Tamara decision.

Lee writes, in part:

The Ninth Circuit had in its earlier en banc decision [579 F.3d 989 (9th Cir. 2009)] set forth guidelines meant to ensure that even otherwise lawful warrants authorizing the search and seizure of computers do not give officers too much access to private data that might be intermingled with evidence of a crime: (1) the government must waive the “plain view” rule, meaning it must agree to only use evidence of the crime or crimes that led to obtaining the warrant, and not to use evidence of other crimes; (2) the government must wall off the forensic experts who search the hard drive from the agents investigating the case; (3) the government must explain the “actual risks of destruction of information” they would face if they weren’t allowed to seize entire computers; (4) the government must use a search protocol to designate what information they can give to the investigating agents; and (5) the government must destroy or return non-responsive data.

The government, however, challenged these guidelines by seeking “super” en banc rehearing by the full Ninth Circuit (in the Ninth Circuit, ordinary en banc review is done by a panel of 11 judges).

Sadly, while yesterday’s decision reached the same, correct result in this case and denied super en banc rehearing, the revised majority opinion now omits the privacy-protective guidelines. Instead, those guidelines are now part of a 5-judge concurrence and are not binding on magistrate judges issuing warrants.

We’re disappointed. True, the Ninth Circuit recognized that government agents have “a powerful incentive . . . to seize more rather than less” (the opinion archly characterizes the government’s view as “Let’s take everything back to the lab, have a good look around and see what we might stumble upon.”). And eliminating the guidelines might avoid Supreme Court review.

Still, if the Ninth Circuit wanted “to avoid turning a limited search for particular information into a general search of office file systems and computer databases,” it would have been far better off with its original, binding rules.

Many civil libertarians are understandably upset by the revised opinion for walking back the guidelines.   Slapping the government on the wrist or ripping into them in an opinion isn’t the same as establishing binding guidelines or rules for how we demand the government conduct itself.  When the court had the opportunity to re-assert Fourth Amendment principles and apply them to a digital world, they ceded to government pressure.    What will stop the government the next time, then?

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