Posted by Orin Kerr:
An Analysis of The Issues in *United States v. Comprehensive Drug Testing*:
http://volokh.com/archives/archive_2008_12_07-2008_12_13.shtml#1228354570
On December 18th, the en banc 9th Circuit will hear oral argument on
an important case involving how the Fourth Amendment applies to the
search and seizure of computers. You can read the revised panel
decision [1]here, and download the petition for rehearing [2]here
(5.2mb). I've written a lot about these issues and I worked
extensively on them back was at the Justice Department in 1998-2001.
Given my writing and past work in the area, I wanted to blog some
thoughts about the case.
I. The Facts
The facts of the case are quite complicated, but here at the basics.
The government has been investigating steroid use in baseball, and it
obtained warrants for computers owned by the third party company,
Comprehensive Drug Testing, that ran the steroid tests. The warrant
sought the records of 10 specific players, combined with any "[a]ll
manuals, pamphlets, booklets, contracts, agreements and any other
materials detailing or explaining�
the "administration of Major League Baseball�s drug testing program."
During the execution of the warrant, much of the day was spent in
negotiation between the government and CDT as to exactly where the
information was located and how it could be copied. The government
ended up not taking any equipment, but it did copy a directory of
files, called the Tracey directory, that contained a lot of records
beyond the mere 10 specific players sought in the warrant. There is
some dispute among the parties (and the judges in the panel opinion)
as to why the government copied the entire directory rather than stay
onsite and only copy the records of the 10 players. Although the facts
are kind of unclear on this, it looks like the government ended up
looking through the Tracey directory for evidence within the scope of
the warrant, and then discovered lots of stuff involving other
players' steroid use and sought to expand the investigation on that
basis.
In this case, CDT and the Major League Players' Association have
challenged the search warrants and the expanded investigation, arguing
on behalf of the other players' interests. Rather than waiting for
charges to be filed, which would then lead to a motion to suppress,
the groups are trying to assert the Fourth Amendment rights of the
unindicted players outside the scope of the initial 10 players using
the procedural vehicle of a Rule 41 motion for the return of property
unlawfully seized. The question is, should the motion be granted and
the investigation preemptively stopped in its tracks? Or should the
government be allowed to proceed?
II. Introduction to the Two Big Issues
This case is particularly interesting because it ends up at the
intersection of two distinct problems that I used to deal with a lot
when I worked at the Justice Department. As I noted in[3] an earlier
article on computer warrants, computer warrants are usually executed
in two stages: the physical search stage and the electronic search
stage. First, the government goes and takes the files away (the
physical stage), and second, the governments searches through the
files obtained for the evidence sought by the warrant (the electronic
stage). This raises two distinct problems in cases like CDT. At the
physical stage, the problem is how to minimize the intrusiveness of
the on-site search at operating third-party business. At the
electronic stage, the problem is how to minimize the intrusiveness of
the off-site search.
[4]
To read the rest of this post, click here.
(a) Minimizing at the First Stage
The problem at the first stage is this: How should the government
execute warrants for electronic information held by third party
businesses? For those with a long memory, this is the [5]Steve Jackson
Games problem: The government may have probable cause to execute a
warrant seeking digital evidence, but actually finding that evidencer
is usually incredibly hard The government could just go in and take
all the third party servers and search them offsite, as it usually
does when executing a warrant for computers at a home. But that's a
huge disruption of the legitimate third party's interests: ideally,
the government needs to both minimize the interference with the third
party business and yet also get the information it is entitled to get
in the warrant. Plus, from a practical standpoint, if the third party
doesn't like how the warrant is executed, the third party is likely to
raise a stink and may sue under statutes like the Privacy Protection
Act -- as the government learned in [6]Steve Jackson Games.
In a perfect world, the third party would always work with the
government and would do most of the work for it. That greatly
minimizes the interference with the third party's interests. But
that's just the perfect world: The real works is usually messier,
especially outside the ISP setting, and there are no easy answers. The
information can be anywhere, and the government doesn't know who
exactly it can trust. The third party might be helpful, but then it
might be untrustworthy or might not fully appreciate the government's
rights to execute the warrant. What to do in light of the uncertainty?
Back when I was at DOJ, we ended up advising agents and AUSAs to do
their best to work with third parties and to try to minimize the
interference with the third party's interests -- with the caveat that
there was really no way to know how to optimize the problem. The
Fourth Amendment didn't really place any limitations on these
processes if the government had a valid warrant, but we were pretty
worried about the prospects of civil suits under the Privacy
Protection Act after [7]the district court opinion in Steve Jackson
Games. So we essentially advised agents to try to "play nice" to avoid
problems.
(b) Minimizing at the Second Stage
The problem with the second stage is the needle in a haystack
problem. The government now has the computer or file offsite, and the
warrant authorizes the search for the evidence in it. But how to
execute the warrant, given that computer searches are so invasive
given that so much information is always mixed together? How can you
ensure that searches remain narrow given the need to search for the
needle in the haystack? There are two basic approaches: Ex ante
approaches, which would place judge-approved limits on how the search
can occur beforehand, and ex post approaches, which would review the
government's conduct and exclude that which violates the law after the
search occurs.
I wrote a law review article on this issue in which I conclude that
review must be ex post, not ex ante. Ex ante review just doesn't work
because no one has any idea of what kind of ex ante restrictions are
appropriate in any particular setting. Judges are not computer
forensic experts, and even the world's greatest computer forensic
experts can't predict with certainty how the analysis of a computer
will unfold. I argue in the article that ex post restrictions are the
only serious option, but they really require a tightening of the plain
view exception (and ultimately, its end) to be effective. Rather than
remaking that argument here, I'll just refer the reader to the article
and the relevevant section: [8]Searching and Seizing Computers in a
Digital World, 119 Harv. L. Rev. 531, 565-84 (2005).
III. How Should the Ninth Circuit Resolve This Case?
Okay, so enough set-up: What should the Ninth Circuit do? My own
view is that the government should win at this stage on procedural
grounds. The court is adjudicating a motion to return property under
Rule 41, which is a motion for a return of property that was
unlawfully seized. The general idea behind such motions is that if the
government has seized property outside the scope of a warrant, you can
sue to get the property back.
But here CDT and the players' association are trying to convert Rule
41 motions into a very different sort of relief: They want the Ninth
Circuit to treat a Rule 41 motion as a sort of preemptive motion to
suppress, creating a sort of ex-ante use restriction on what the
government learns from the search. It's a very strange idea, sort of a
preemptive suppression rule on steroids (so to speak). As far as I can
recall, I have never seen anything like it.
What makes this unusual procedural move extra strange is that we
don't even know who the people are whose rights are being vindicated.
As I understand it, the objections to the search are being brought by
the drug testing company and the player's association on behalf of
other players who may have violated the law but who were not targeted
by the initial warrant. No one actually knows who these people are, as
I understand it.
If this issue arose in the context of a motion to suppress, only the
actual persons whose Fourth Amendment rights were at issue could file
such a motion. They would challenge the exact search that led to the
discovery of the evidence against them, and there would be a hearing
as to the exact facts. But here the challenge to the warrant is being
brought as a sort of universal standing challenge: The idea is that
the challengers want the courts to craft a remedy that will protect
everyone who might have a Fourth Amendment right in the information,
whoever that might be.
I'll hand it to the lawyers for CDT and the Players' Association:
They're great attorneys, and they're being very aggressive in trying
to get these issues litigated at this stage long before most courts
would even look at these questions. But I think the Ninth Circuit
should decline to use Rule 41 in this newfangled way. The challengers
here are asking for a level of judicial involvement in the search
warrant process that you don't normally see, all at a very early stage
before judges normally get involved, all in an area with very
uncertain facts and rapidly changing technology. I would follow the
Sixth Circuit's lead in the [9]en banc Warshak opinion and decline to
jettison the traditional procedural limits on judicial rulings about
such matters.
If the Ninth Circuit judges conclude that they are comfortable with
this case procedurally, then the question is how to deal with the two
different stages of the searches.
In my view, the restrictions here shouldn't come at the physical
stage. I worked on a lot of these cases when I was at DOJ, and the
execution of the warrant that led to the "Tracey" file is about as
narrow as searches get. When I was at DOJ, our focus was on avoiding
the seizure of physical stuff: We didn't want to take the servers
away, in light of Steve Jackson Games. A search at a business in which
the main item copied was a folder of only a few thousand files would
have been considered a remarkable privacy success.
Indeed, most computer searches are much broader and more invasive in
scope. Consider that it is routine practice (allowed widely by the
courts) to take personal computers at a home and copy all the hard
drives. Given that a typical computer might have an 80GB hard drive, a
warrant at a business that led to the copying of the Tracey file is a
remarkably small amount of information. The government had a valid
warrant: Although the fact that it was executed at a third party
raises special concerns, the valid warrant gives the government the
flexibility needed to execute the warrant with only deferential
review. See [10]Dalia v. United States, 441 U.S. 238 (1979);
[11]Zurcher v. Stanford Daily, 436 U.S. 547 (1978).
That brings us to the second stage of things, the electronic search.
Let's assume that the Ninith Circuit holds that it was a seizure to
copy the file; that the file retained a reasonable expectation of
privacy; that looking through the copy therefore was a separate
search. (These aren't obvious steps, incidentally, but the Ninth
Circuit would need to reach them to get to the second stage.) How
should the Ninth Circuit limit the scope of the second stage?
In my view, ex ante restrictions -- what has generally been known as
the Tamura approach -- is the wrong way to go. First, I don't think it
actually works, as I have [12]argued elsewhere. It ends up just being
a formality, stock language that ends up having no real force, because
no one can predict how the search will need to unfold. Further, the
U.S. Supreme Court has made pretty clear as a matter of doctrine that
warrants regulate what the government may search for and what it may
seize, but not the "precise manner" in which they are executed. As the
Court put it in [13]Dalia v. United States, 441 U.S. 238 (1979):
Nothing in the language of the Constitution or in this Court's
decisions interpreting that language suggests that, in addition to
the three requirements discussed above, search warrants also must
include a specification of the precise manner in which they are to
be executed. On the contrary, it is generally left to the
discretion of the executing officers to determine the details of
how best to proceed with the performance of a search authorized by
warrant -- subject, of course, to the general Fourth Amendment
protection "against unreasonable searches and seizures."
That general protection is generally measured ex post in a motion to
suppress, not ex ante in some sort of procedures to be followed to
execute the warrant. The Ninth Circuit could try to work its way
around that, but the last time that was tried the Supreme Court caught
on and reversed them. See [14]United States v. Grubbs, 547 U.S. 90
(2006) (overturning ex ante Ninth Circuit rules on the execution of
anticipatory warrants).
So that brings us finally to the plain view exception. As I argued
in my Harvard article, I think that's the rule that should change:
Plain view needs to be narrowed, and in my view, may ultimately need
to be abandoned in digital searches altogether. The plain view
exception is based on an understanding of the role of the
particularity requirement that is inaccurate for digital searches: The
particularity requirement imposes much less of a limitation in the
digital search context, and I think ultimately the most serious way to
restore the role of the particularity requirement in digital evidence
cases is to limit or abolish plain view; otherwise the exception
swallows the rule. (Read [15]the article for more.) Interestingly,
Judge Thomas in his dissenting panel opinion makes a somewhat similar
argument at 1192-93.
If the Ninth Circuit holds that the plain view exception doesn't
apply in digital evidence cases, however, that would create a pretty
clear circuit split with the 10th Circuit and its 1999 Carey decision.
If that happens, it may be that the Ninth Circuit isn't the last word
in the case.
IV. Postscript
Anyway, that's my basic take on the case. There are a lot of other
issues raised by it that received considerable attention in initial
panel opinions, but this post can't go on forever.
A final thought is that Congress could sensibly regulate this sort
of problem with a rule targeted just for searches involving medical
records. One of the things that sensibly gets folks worked up about
this case is that they involve medical data: Whether or not you have
Fourth Amendment rights in medical records (this is actually an
interesting question -- try squaring [16]Skinner v. Railway Labor
Exec. Assoc. with the third party doctrine cases like [17]United
States v. Miller), certainly there are extremely strong privacy
interests there.
Congress could avoid some of the difficulties here by expanding on
the Privacy Protection Act, 42 U.S.C. 2000aa, to have special rules
for searches involving medical records. For example, perhaps a special
master could be required as a matter of statutory law. While special
masters have tended to be a poor solution to computer searches and
seizures generally -- they take years, for example -- perhaps thay
would be a good idea for medical privacy cases. It's hard to impose
that as a Fourth Amendment rule, but it would be sensible policy for
Congress.
References
Visible links
1.
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/065B9DEB8BBE6BE9882573DA00091492/$file/0510067.pdf?openelement
2. file://localhost/var/www/powerblogs/volokh/posts/1228354570.html
3. http://www.olemiss.edu/depts/ncjrl/pdf/02-KERR.pdf
4. file://localhost/var/www/powerblogs/volokh/posts/1228354570.html
5. http://www.sjgames.com/SS/
6. http://www.sjgames.com/SS/
7. http://www.sjgames.com/SS/decision-text.html
8. http://www.harvardlawreview.org/issues/119/Dec05/Kerr.pdf
9. http://www.ca6.uscourts.gov/opinions.pdf/08a0252p-06.pdf
10.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=441&invol=238
11. http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/Zurcher.html
12. http://www.harvardlawreview.org/issues/119/Dec05/Kerr.pdf
13.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=441&invol=238
14.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=04-1414
15. http://www.harvardlawreview.org/issues/119/Dec05/Kerr.pdf
16. http://supreme.justia.com/us/489/602/
17. http://supreme.justia.com/us/425/435/
Hidden links:
18. file://localhost/var/www/powerblogs/volokh/posts/1228354570.html
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