I haven’t blogged recently about the Ninth Circuit’s blockbuster computer search and seizure decision in United States v. Comprehensive Drug Testing, although not because it hasn’t been on my mind: Among computer crime law folks, it’s topic #1 these days. Indeed, since the en banc decision was handed down, it seems that every conference and informal gathering in the field eventually morphs into trying to figure out what the majority was smoking opinion means, how judges should comply with it, how law enforcement should respond to it, and whether and how long it will be until it is overturned.
Closer to home, I had to make a quick decision whether to put the opinion into the 2nd edition of my computer crime law casebook, which is at the printers right now. I ended up deciding not to include it, as I think the odds favor it being overturned within a year or two. I figured it was better to include the opinion in a supplement in the meantime rather than include it in the main book, as you can easily take a case out of a supplement but not the book itself.
But exactly how the case was going to be overturned is another matter. The most remarkable parts of the opinion are just lists of new rules, announced without any apparent authority or even a case or controversy. We don’t yet know if DOJ plans to file a cert petition in the case, although the procedural posture is tricky: DOJ could try to challenge some other aspect of the case and get that part scrapped in the process, but it’s hard to mount a direct challenge to what seems to be dicta. The main alternative for DOJ would be to let this case stand, let the system struggle with it for a few months or a year until there is a clear split, and then take the case to the Supreme Court. But that’s not a great option, as it means an intervening period when no one knows what the rules are for obtaining and executing search warrants for digital evidence.
In light of those somewhat awkward possibilities, I was intrigued to learn that the Ninth Circuit entered an order yesterday addressed to the parties in the case asking them to brief whether the case should be reheard by the full en banc court:
KOZINSKI, Chief Judge:
By November 25, 2009, the parties shall file simultaneous briefs addressing whether this case should be reheard en banc by the full court.
Now, wait, you’re wondering, wasn’t the case already heard by the full court? No, it wasn’t: The Ninth Circuit has so many active judges that its en banc panels consist of only about a third of its active judges. As Wikipedia explains:
In other circuits, en banc courts are composed of all active circuit judges, plus (depending on the rules of the particular court) any senior judges who took part in the original panel decision. By contrast, in the Ninth Circuit it is impractical for twenty-eight or more judges to take part in a single oral argument and deliberate on a decision en masse. The court thus provides for a “limited en banc” review of a randomly-selected 11 judge panel. This means that en banc reviews may not actually reflect the views of the majority of the court, and indeed may not include any of the three judges involved in the decision being reviewed in the first place.
But the Ninth Circuit’s rules provide for an en banc from the en banc – a super banc? – of all of the judges. As Judge Kozinski explained in 2003 testimony:
In the unlikely event that six judges might command a majority of an 11-judge en banc court and express a view inconsistent with the views of the other 21 active judges on the court, the circuit rules provide for review by the full court upon the request of any judge. This has never happened since the limited en banc rule was adopted by the Court in 1980.
Will Comprehensive Drug Testing be the first such case? On purely selfish grounds, a small part of me hopes not: As a public law scholar, you want your field to be red hot, and the initial en banc decision here is so way “out there” that it would help bring the field to the frontburner if it stays on the books. But from a less selfish perspective, it’s hard to think of a better case to take to the full court. The en banc decision dropped a bomb on the entire computer forensics world, without any briefing or even notice, and most of its rules are hard to square with relevant Supreme Court doctrine and/or the Federal Rules of Criminal Procedure. Plus, it’s difficult to figure out what the new rules really mean in practice, as they are written in such vague language that it’s hard to know what to make of it. The opinion has the agents, prosecutors, and magistrate judges all scratching their heads trying to figure out what to do. So I would think this is a very appropriate case to take super-en-banc. Stay tuned.
Anderson says:
I haven’t blogged recently about the Ninth Circuit’s blockbuster computer search and seizure decision in United States v. Comprehensive Drug Testing, although not because it hasn’t been on my mind
Ah, then you are clearly endorsing the decision!
[/cleanville]
... Agreed the super en banc is odd, esp. given the strong likelihood for cert; still, cert isn’t in the court’s hands, whereas apparently super-banc (en Federal Reserve?) is; if the straw poll suggests a majority to undo the damage, then that may be the best course.
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zippypinhead says:
The contrarian part of me would almost rather the Ninth Circuit not take another whack at CDT. The opinion is so bad as it currently stands that a cert petition may be irresistable to at least 4 Justices, even without a classic Circuit split. Frankly, if the full Ninth Circuit comes up with a compromise holding that moderates some (but not all) of the more inane aspects of the earlier en banc op and actually clarifies whether any of the rules are purportedly required by the Fourth Amendment or are just being adopted per the Circuit’s inherent supervisory powers, it may be harder to get SCOTUS interested in fixing the mess once and for all.
Incidentally, there may already be a Circuit split on at least some of CDT’s restrictions, although as cert-worth splits go, it may be a bit underwhelming. See U.S. v. Burgess, 2009 WL 2436674 (10th Cir. Aug. 11, 2009) (at hns. 10–11, holding that it is not necessary to put computer search protocols or procedures in a warrant application).
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November 5, 2009, 6:41 pmSteve says:
Does a super en banc court set super-precedent? Paging Arlen Specter.
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November 5, 2009, 6:58 pmNickM says:
Steve wins the thread.
Nick
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November 5, 2009, 7:19 pmEvilDave says:
I hear if the “super-en banc” doesn’t resolve the issue, the litigants will be forced to settle their differences in the Thunderdome.
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November 5, 2009, 9:52 pmjccamp says:
“...what the majority was
smokingopinion means...”I really like this place, even when I disagree with the posts (not this one, BTW).
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November 5, 2009, 10:07 pmloki13 says:
What I want to know is this– how are we going to Bluebook thge hell out of this. We need parentheticals to address the majesty of the super en banc! Definitely a reason for a 19th ed. Let’s see...
(en banc)
(super en banc)
(en banc el jefe)
(super trooper abba el banc)
(el banco del circuito estupendo del nacional noveno)
(en banc, yo!)
I am in eager anticipation!
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November 5, 2009, 11:09 pmjosh bornstein says:
Let us not forget ‘double-secret super en banc’
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November 6, 2009, 1:04 amD.O. says:
I thought of something underwelming for the usual 11-judge not-quite-en-banc panel: half-banc.
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November 6, 2009, 3:34 amjosh bornstein says:
The shizzle en bancizzle
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November 6, 2009, 3:40 amPB says:
A banc too big to fail?
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November 6, 2009, 7:56 amjustaguy says:
As someone who agrees with the basic premise of what the en banc panel decided; namely that a specific search for specific data under PC doesn’t allow search of everything; I’d like to know why OK thinks the 11 judges were making use of California’s medical pot laws?
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November 6, 2009, 8:59 amOrin Kerr says:
Justaguy,
That wasn’t the basic premise of the en banc decision. The basic premise of the decision was that magistrates are encouraged to impose limitations on warrants outside the Fourth Amendment, using their own personal sense of good policy, and that courts should refuse to issue warrants unless the government waives reliance on Supreme Court Fourth Amendment doctrine, effectively delegating search and seizure rules to individual magistrates. (See also the rest of the opinion, with lots of other free-form rules.)
To be clear, I don’t think anyone believes was necessarily marijuana that led to that opinion. Most people agree there are other controlled substances that could also have generated that same basic approach. But I haven’t found anyone yet who is willing to say that they think the opinion is actually legally correct, even though many (including myself, to a large extent) are sympathetic to the policy goals of the Ninth Circuit in handing down the rules it did.
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November 6, 2009, 10:25 amEd Unneland says:
Perhaps the law should be changed so that the eleven-judge panels are no longer called en banc. Also, does the courthouse in San Francisco have a courtroom large enough to accommodate all the active judges? I guess there’s a ceremonial courtroom that could work. It would still be a bear to preside over. Would there have to be some degree of understanding on the part of the judges that questions from all twenty-seven (?) active judges presents difficulties for appellate advocacy?
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November 6, 2009, 10:38 amOrin Kerr says:
Ed Unneland,
It’s a mess, but then what’s the alternative — split the Ninth Circuit?
Hmm, split the Ninth Circuit.....
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November 6, 2009, 11:24 amAnderson says:
Let us not forget ‘double-secret super en banc’
Are we allowed to cite those?
To be clear, I don’t think anyone believes was necessarily marijuana that led to that opinion. Most people agree there are other controlled substances that could also have generated that same basic approach.
Y’know, it’s poor form for a blog poster to win his own comment thread.
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November 6, 2009, 11:42 amShelbyC says:
Or just call them super-panels, which is more accurate. I remember a few years ago a panel had to reverse itself because it issued a ruling without realizing that the en-banc court had issued a contrairy ruling a few days earlier.
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November 6, 2009, 12:14 pmJ-anon says:
One of the big problems with the 11 person en banc is that it encourages land-grab opinions when one side or the other of the ideological spectrum feels it has the upper hand on the 11 person panel. So you get far ranging opinions that seem to come out of left (or right) field and that do not accurately reflect the tenor of the entire court.
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November 6, 2009, 2:47 pmmethodact says:
And yet the decision was merely a minor bump in the road along the way to otherwise such expedient totalitarianism.
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November 7, 2009, 11:35 am