So, this is important

I’m not a big baseball fan.  For that matter, there are few ball sports that interest me.  But, this is important.  If you recall, a few years ago (2004), there was a big furor over steroids in baseball.  The government searched BALCO and found evidence of rampant steroid use by baseball players.  Now I hadn’t been paying attention to this, but there has been an ongoing legal dispute over that search and how it was conducted.

Yesterday, the 9th Circuit Court of Appeals issued a 9-2 decision that restores a great portion of the 4th Amendment’s right to protection against unreasonable search and seizure in an electronic context.

Caveat lector, I am not a lawyer and I’ve never played one on TV.  Moreover, I haven’t finished reading the dissenting opinions and I’m almost certainly missing some of the nuances here.  In a nutshell, the government had evidence, sufficient to obtain a warrant, against 10 players.  Based on this evidence and the warrant, the prosecutors were able to search BALCO for information about those 10 players.  BALCO maintains all records on their computers, of course.

Now, I’ve had experience with these types of searches.  The government never takes what’s just in their warrant.  The defined search *process* always allows them to take the whole computer or the whole hard drive, or more often than not, an image of the whole hard drive.  The reasoning is that information pertaining to the search could be hidden, or their could be some form of booby trap or the data could be encrypted or …

So, the prosecutor in the steroids case took the whole directory in which there was a file containing drug tests of MLB players.  The file itself contained information about far more than the 10 players named in the warrant.  So, rather than taking the 10 rows of the spreadsheet, rather than taking just the one file, the prosecutor took a directory containing the results of thousands of drug tests.

The prosecutor then (as I understand it) went jurisdiction shopping until he found a judge willing to grant a new warrant for information about 104 players, based on the information found in the spreadsheet.  The argument being that once they had access to the spreadsheet, or the directory, or even the computer, the additional information was in plain sight.  Several judges believed that the prosecutor intentionally wrote the process for executing the search warrant in such a way that he could *expand* the scope of the investigation by introducing evidence based on this plain sight doctrine in order to find new players to prosecute.

What’s interesting is that this seems fairly normal to many of us.  Of course the prosecutor will search your whole hard drive, of course they will bring new charges, etc.  The problem is that a) BALCO itself was not the subject of the prosecution, and b) this IS NOT the way things work in the tangible world.  Prosecutors are exploiting the new(ish) electronic domain to gain access to information they wouldn’t have if files were stored on paper.

Apparently (I need to look into this), the relevant doctrine in the physical world is the United States vs Tamura, 1982.  In this case, the object of a search was stored in a file cabinet.  It was not feasible to search that file cabinet in the office, so the prosecutors obtained access to it, with the requirement that they only pull information relevant to their warrant – even if they stumbled across additional criminal information.

The majority in the 9th Circuit decision believe that a sensible application of Tamura to an electronic domain means that information/documents stored in proximity to the information sought in the warrant is *not* in plain view.  And they are correct.  If information in adjacent files in a file cabinet are not in plain view, then neither is information stored electronically in adjacent files, folders or computers.

Explicitly, the justices stated:

In general, we adopt Tamura’s solution to the problem of necessary over-seizing of evidence: When the government wishes to obtain a warrant to examine a computer hard drive or electronic storage medium in searching for certain incriminating files, or when a search for evidence could result in the seizure of a computer, see, e.g., United States v. Giberson, 527 F.3d 882 (9th Cir. 2008), magistrate judges must be vigilant in observing the guidance we have set out throughout our opinion, which can be summed up as follows:

1. Magistrates should insist that the government waive reliance upon the plain view doctrine in digital evidence cases. See p. 11876 supra.

2. Segregation and redaction must be either done by specialized personnel or an independent third party. See pp. 11880-81 supra. 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. See pp. 11877-78, 11886-87 supra.

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. See pp. 11878, 11880-81 supra.

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. See p. 11881-82 supra.

As someone who has participated in prosecutorial searches, these strike me as eminently sensible guidelines.  The first states that there’s no such thing as plain view in computer cases – each piece of information is in its own separate space.  To consider otherwise is to allow every piece of electronic equipment in the world to be searched since they are all connected via the Internet.  The second states that the prosecutor shouldn’t be the one doing the search, b/c the searching personnel *will* wind up seeing information that isn’t related to the warrant.  The problem is that since nothing is in plain view (can you tell what does a hard drive contain by looking at the physical device?), an in-depth search is required to fulfill the warrant, but that search will violate the terms of the warrant if all of the information is shared with the prosecutor.  The third states that prosecutors can’t *overestimate* the risk of booby traps, deadfalls, etc. that would destroy data.  There was no reason to think there were such in the BALCO computers and therefore, a full copy of their hard drives was not required.  The fourth is pretty plain – the process/protocol must be restricted to what the government is allowed to find.  And the fifth says that the prosecutor can’t keep things that it found that it wasn’t supposed to have.

All in all, a very reasonable balance of 4th Amendment rights in a digital context – no matter what Orin Kerr might say. Good news on the electronic privacy front… for once.

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