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Court Sets New Rules for Computer Searches [Ninth Circuit] [MLB steroid abuse]
The New American ^ | 2009-08-30 | Jack Kenny

Posted on 08/30/2009 3:48:44 PM PDT by rabscuttle385

In a ruling with broad implications for computer privacy, the Ninth U.S. Circuit Court of Appeals in San Francisco ruled that federal investigators went too far when they seized the digital records of a drug testing company and kept the results of confidential drug tests performed on all Major League baseball players during the 2002 season.

According to published reports, 104 players tested positive for performance enhancing drugs. The names of four of them — Alex Rodriguez, Manny Ramirez, David Ortiz, and (now retired) Sammy Sosa — were leaked to the press by an anonymous source or sources.

The court upheld a ruling by Judge Florence-Marie Cooper of the Central District Court of California that required the government to yield records taken in the investigation. The judges ruled that law-enforcement agents went far beyond the scope of the warrant authorizing a search of the records of 10 ballplayers for whom the government had established probable cause. Government officials said they are considering an appeal to the U.S. Supreme Court.

The court's 9-2 ruling could have a significant impact on future database searches. It sets forth a five-part standard for warrants, reminiscent of the "Miranda warning" established by the U.S. Supreme Court in a 1966 ruling requiring that criminal suspects be fully notified of their rights when placed under arrest. In computer searches, the circuit court ruled, warrants should not be issued unless the government waives reliance upon the plain view exception to the exclusionary rule, which bars evidence seized without authority of a warrant. Under the long-established plain view exception, evidence that is in plain sight during an authorized search may be taken and used in court even when the object or objects seized are not among the things described in the warrant. Officers with a warrant to search a home for stolen merchandise, for example, may also recognize and seize as evidence marijuana in a transparent bag, left in plain sight on a coffee table.

The Ninth Circuit ruling is the latest in a long and winding trail of litigation stemming from a federal investigation of the Bay Area Laboratories Company (BALCO), suspected of providing steroids to professional baseball players. Prosecutors obtained a subpoena from a grand jury in the Northern District Court of California, calling on Comprehensive Drug Testing Inc. of Santa Ana to turn over all drug testing records and specimens of all the players who had participated in the 2002 testing. The tests were conducted on all Major League players at the time, with the guarantee that the results would be confidential and there would be no penalties for testing positive. The purpose was to determine if five percent or more of the players would test positive, the threshold agreed to by the Major League Baseball and the Major League Baseball Players Association as grounds for future testing.

The players association and the testing company appealed the subpoena and succeeded in having it quashed. But the government also obtained a warrant from the Central District Court of California to seize and search the records of the 10 players for whom it had probable cause. Both the district and circuit courts ruled, however, that officials exceeded the terms of the warrant they executed against Comprehensive Drug Testing. The warrant instructed the investigators to determine how much of the information about the ten players could be segregated on-site from the rest of the company's records. It also required procedures for segregating the data in any investigation of the files and records that might be conducted in a law-enforcement laboratory.

"Brushing aside an offer by on-site by CDT personnel to provide all information pertaining to the ten identified baseball players," wrote Chief Judge Alex Kozinski, "the government copied from CDT's computer what the parties have called the 'Tracey Directory,' which contained, in Judge Cooper's words 'information and test results involving hundreds of other baseball players and athletes engaged in other professional sports.'"

Kozinksi dismissed as "too clever by half" the contention that once the agents opened the directory, the disputed records were in plain view. Under that line of reasoning, the judge argued, everything the government wishes to seize would come under the plain view exception.

"Why stop at the list of all baseball players when you can seize the entire Tracey Directory?" Kozinski wrote. "Why just that directory and not the entire hard drive? Why just this computer and not the one in the next room and the next room after that?"

The court noted the difficulties inherent in computer searches, since records can be quickly and easily be destroyed, mislabeled or even "booby trapped" to thwart an investigation. Nonetheless it set forth the following rules for judges to follow in issuing warrants:

  1. Magistrates should insist that the government waive reliance on the plain view doctrine in digital evidence cases.

  2. Segregation and redaction must be either done by specialized personnel or an independent third party. If the segregation is to be done by government computer personnel, it must agree in the warrant application that the computer personnel will not disclose to the investigators any information other than that which is the target of the warrant.

  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 fora.

  4. The government's search protocol must be designed to uncover only the information for which it has probable cause, and only that information may be examined by the case agents.

  5. The government must destroy or, if the recipient may lawfully possess it, return non-responsive data, keeping the issuing magistrate informed about when it has done so and what it has kept.

The court's majority opinion acknowledged the difficulty of limiting searches to prescribed bounds when dealing with computer data:

We accept the reality that such over-seizing is an inherent part of the electronic search process and proceed on the assumption that, when it comes to the seizure of electronic records, this will be far more common than in the days of paper records. 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.

The two dissenting judges argued that it was the court's majority that was overreaching in this case and ignoring it's own precedent, established in a ruling in which the court had denied an appeal to suppress evidence of child pornography found during a computer search for false identity cards. "There is no rule," wrote Judges Consuelo Callahan and Sandra Ikuta, "that evidence turned up while officers are rightfully searching a location under properly issued warrant must be excluded simply because the evidence may support charges for a related crime."


TOPICS: Constitution/Conservatism; Crime/Corruption; Government; News/Current Events
KEYWORDS: computerprivacy; databases; drugs; internet; lping; mlb; ninthcircuit; policestate; privacy; steroid; wod; wosd

1 posted on 08/30/2009 3:48:45 PM PDT by rabscuttle385
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To: bamahead; ShadowAce
The court's 9-2 ruling could have a significant impact on future database searches.

*Ping!*

2 posted on 08/30/2009 3:49:21 PM PDT by rabscuttle385 (May God save the American Republic.)
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To: rabscuttle385

They finally got something right....


3 posted on 08/30/2009 3:57:33 PM PDT by freebilly ( No wonder all the left has a boner for Obama.... There's "Cialis" in "SoCIALISt")
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To: rabscuttle385
Crazy me, but don't governmental agencies like the Ninth Circus Court of Appeals and Congress have bigger fish to fry than a bunch of baseball players killing themselves using steroids?? Congress could be doing like REAL business like stopping Obama from destroying what's left to our country. The Ninth Circus could be just taking their jobs more seriously than having more of their decisions turned over by the Supreme Court. I think the Supreme Court is busy enough not to have to go back and clean up the San Francisco based Ninth Circus’ messes.
4 posted on 08/30/2009 4:00:38 PM PDT by antiunion person (PALIN for PRESIDENT 2012)
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To: rabscuttle385

WWJKD (What Will Justice Kennedy Do)


5 posted on 08/30/2009 4:01:26 PM PDT by HiTech RedNeck (Barack Obama is a political suicide bomber and the Rats are political arsonists.)
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To: antiunion person

So does Congress, but they’re insinuating themselves in this sort of case. None of their business and they most certainly have better things to do, but there you have it.


6 posted on 08/30/2009 4:11:52 PM PDT by madison10
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To: antiunion person
Crazy me, but don't governmental agencies like the Ninth Circus Court of Appeals and Congress have bigger fish to fry than a bunch of baseball players killing themselves using steroids??

Agree totally. This is just an asinine extension of the War on Drug Users. If the baseball players broke the rules of baseball, then it is up to Major League Baseball to punish said players within the rules they set forth.

7 posted on 08/30/2009 4:15:45 PM PDT by pnh102 (Regarding liberalism, always attribute to malice what you think can be explained by stupidity. - Me)
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To: rabscuttle385

http://www.ca9.uscourts.gov/datastore/general/2009/08/26/ComprehensiveDrugTestingSummary.pdf

Here is the court summary and the names of the judges who in the majority


8 posted on 08/30/2009 4:19:01 PM PDT by ErnstStavroBlofeld ("We will either find a way, or make one."Hannibal/Carthaginian Military Commander)
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To: pnh102

“Agree totally. This is just an asinine extension of the War on Drug Users. If the baseball players broke the rules of baseball, then it is up to Major League Baseball to punish said players within the rules they set forth. “

The 9th got something right for a change.

This is a limitation on gov’t, not an expansion.


9 posted on 08/30/2009 4:55:59 PM PDT by webstersII
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To: rabscuttle385; Abathar; Abcdefg; Abram; Abundy; akatel; albertp; AlexandriaDuke; Alexander Rubin; ..
The court's 9-2 ruling could have a significant impact on future database searches..."Why just that directory and not the entire hard drive? Why just this computer and not the one in the next room and the next room after that?"



Libertarian ping! Click here to get added or here to be removed or post a message here!
(View past Libertarian pings here)
10 posted on 08/31/2009 7:29:03 AM PDT by bamahead (Avoid self-righteousness like the devil- nothing is so self-blinding. -- B.H. Liddell Hart)
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To: rdb3; Calvinist_Dark_Lord; GodGunsandGuts; CyberCowboy777; Salo; Bobsat; JosephW; ...

11 posted on 08/31/2009 7:35:14 AM PDT by ShadowAce (Linux -- The Ultimate Windows Service Pack)
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To: thouworm; cshnorthcarolina
Late ping!

Libertarian ping! Click here to get added or here to be removed or post a message here!
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12 posted on 08/31/2009 7:36:00 AM PDT by bamahead (Avoid self-righteousness like the devil- nothing is so self-blinding. -- B.H. Liddell Hart)
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To: rabscuttle385
The tests were conducted on all Major League players at the time, with the guarantee that the results would be confidential and there would be no penalties for testing positive. The purpose was to determine if five percent or more of the players would test positive, the threshold agreed to by the Major League Baseball and the Major League Baseball Players Association as grounds for future testing.

I doubt that was ever the intent of the testing in the first place. Why were the samples traceable to specific players? Anonymity and immunity from punishment would have been assured had the samples been collected in unlabeled bottles and analyzed under the supervision of representatives from both parties, and the samples then destroyed. When there's such a simple way to assure the results they promise and yet they don't do it, one has to ask why.

13 posted on 08/31/2009 8:25:08 AM PDT by Still Thinking (If ignorance is bliss, liberals must be ecstatic!)
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To: antiunion person
Crazy me, but don't governmental agencies like the Ninth Circus Court of Appeals and Congress have bigger fish to fry than a bunch of baseball players killing themselves using steroids??

Under current Federal Law steroids are every bit as illegal as heroin.

14 posted on 08/31/2009 8:28:31 AM PDT by Lurker (The avalanche has begun. The pebbles no longer have a vote.)
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To: Lurker
Under current Federal Law steroids are every bit as illegal as heroin.

True enough, but you don't see Congress setting up panels to investigate shoplifters. Congress should leave law enforcement to law enforcement. They are way outside their delegated powers by investigating steroid abuse in professional sports.

15 posted on 08/31/2009 10:32:42 AM PDT by Seņor Zorro ("The ability to speak does not make you intelligent"--Qui-Gon Jinn)
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To: rabscuttle385
The judges ruled that law-enforcement agents went far beyond the scope of the warrant authorizing a search of the records of 10 ballplayers for whom the government had established probable cause.

Federal government law enforcement officials abused their power? Say it isn't so.
16 posted on 08/31/2009 11:20:32 AM PDT by microgood
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To: Lurker
So!! You can't tell me you don't have anything on your mind that is more important than a bunch of over paid, over drugged and under worked baseball players to be done?? Rightfully so, if all the planets and stars were in proper alignment, we wouldn't need the government at all, except to patch the pot holes in the road that I always can seem to find.
17 posted on 08/31/2009 9:01:39 PM PDT by antiunion person (PALIN/COULTER 2012)
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To: webstersII

And while were at it, lift the anti-trust exempion on Major League Baseball. As long as it is in place, that allows them to stick their nose into their business.


18 posted on 08/31/2009 9:03:25 PM PDT by dfwgator
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To: dfwgator

exempion=exemption


19 posted on 08/31/2009 9:04:00 PM PDT by dfwgator
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To: antiunion person
Bite me, newbie. In my world MLB would be in charge of this and the Feds wouldn't have a damned thing to say about it. But that's not the world we live in.

Mama Fed can tell you what kind of f****** light bulbs you can put in your God d****** living room, and you're upset about the time they spend talking about baseball players?

Give me a Freeping break....

20 posted on 08/31/2009 9:21:51 PM PDT by Lurker (The avalanche has begun. The pebbles no longer have a vote.)
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