Yesterday the Justice Department filed its Brief in Support of Rehearing En Banc By the Full Court in United States v. Comprehensive Drug Testing, the blockbuster computer search and seizure case I have blogged a lot about. From the introduction:
The en banc panel’s decision announced sweeping new rules for warrants to search computers that are having an immediate and detrimental effect on law enforcement efforts. In some districts, computer searches have ground to a complete halt, and, throughout the Circuit, investigations have been delayed or impeded. Magistrate judges are uniformly viewing compliance with the newly announced rules as mandatory, but they are implementing those rules in vastly different ways. All of this was unnecessary. The parties in these cases disagree about the proper resolution of the issues presented for decision, but they agree on one fundamental point: The new rules that the en banc panel announced for the issuance and execution of warrants to search computers were unnecessary to the issues presented in these cases.The en banc panel stepped outside the proper role of an Article III court when it set forth detailed protocols that purport to bind, and that are being understood as binding, magistrate and district judges in future cases. The seminal issues surrounding computer searches should be resolved in actual controversies—not through “guidance” that “magistrate judges must be vigilant in observing.” Op. 11891–11892. On the merits, the detailed protocols announced by the en banc panel conflict with Supreme Court decisions interpreting the Fourth Amendment and the scope of a federal court’s supervisory power. If fully implemented, they also would conflict with amendments to the Federal Rules of Criminal Procedure that are scheduled to go into effect within days.
The United States is mindful that this Court has never granted full court en banc. Indeed, the federal government has never asked the Court to do so. But the broad issues unnecessarily addressed in the en banc panel’s opinion are of surpassing importance and compel that extraordinary action. The full Court should enter an order that vacates the Court’s judgment in these cases and withdraws the en banc panel’s decision. The full Court should then either issue a new opinion limited to the issues properly before it or, at a minimum, allow the parties to brief the appropriateness of the sweeping new protocols announced by the en banc panel.
A few quick thoughts:
1) I don’t think I have ever seen a brief signed by the SG, Deputy SG, AAG, DAAG, and all of the United States Attorneys in a Circuit. If you’re presently a DOJ official and your name isn’t on the brief, you are probably feeling left out.
2) I thought the brief was excellent on the whole, although, as you might guess given my previous writing, I was not entirely persuaded by the harms of eliminating plain view for digital evidence. For example, in the case mentioned on pages 6–7 involving the men who had filmed themselves raping a child, the warrant could just be drafted broadly enough to include any images of child pornography and any evidence of unlawful child sex offenses. That way, evidence of other victims would be included within the scope of the warrant and there would be no need to rely on “plain view.” But that’s a quibble; I thought the brief was well done.
3) Given that all the parties to the case agree that the “guidance” sections were unnecessary, the sensible course would be for the Ninth Circuit to amend the opinion and take the “guidance” sections out. That is, keep the sections that were briefed and responded to the case, and take out the stuff with all the prospective rules beyond this case. Do that and everybody goes home happy, without the time and effort of going super-en-banc or the prospect of Supreme Court reversal. That seems like the sensible course to me, at least.
Politics A Definition, “Figures Lie and Liars Figure” « Moonbat Patrol says:
[...] Pundits Sister Toldjah John Conyers: “I’m tired of saving Obama’s can” The Volokh Conspiracy DOJ Files Brief Supporting Super-EN-Banc in CDT Another Black Conservative Obama Plans to send 34,000 troops to Afghanistan Diary of a mad [...]
Steve says:
I wonder what kind of review and approval process could have possibly been employed with regard to all these various signatories — considering Daniel Bogden’s name isn’t even spelled correctly on the title page or in the signature block.
Quote
November 24, 2009, 3:22 pmthe federal white collar criminal says:
Orin, it might be helpful to very briefly explain the particularities of review in the Ninth Circuit as background to the procedural move here. As I understand it, when the Ninth Circuit site “en banc,” it doesn’t actually sit en banc, just as a larger panel. I’m sure we could all find out the deal in Ninth Circuit rules, but I’m too lazy.
Quote
November 24, 2009, 4:16 pmOrin Kerr says:
FWCCS,
I explained it in some depth in my most recent post on CDT.
Quote
November 24, 2009, 4:33 pmthe federal white collar criminal says:
Ah, didn’t see that. Link, for those who want it:
http://volokh.com/2009/11/05/ninth-circuit-considers-super-en-banc-for-comprehensive-drug-testing/
Quote
November 24, 2009, 4:44 pmkrs says:
Sounds like DOJ had a super en banc session of its own... or maybe just a mini en banc. If this case ends up at the Supreme Court, perhaps the signature block will expand further.
Quote
November 25, 2009, 1:18 amA faceless bureaucrat says:
Hyper-protectivity toward internet and computer technologies seems to be the hallmark of the author judge (and current chief judge of the circuit), and I would be surprised if he and the pseudo-en banc panel were able to take a step back from the abyss and remove the technocratic dicta and procedural guidelines from the opinion without being ordered to do so by the entire court or another Court which is not predisposed toward 9th Circuit jurisprudence.
Quote
November 25, 2009, 9:10 amCvMe says:
This brief demonstrates the merits of word limits: 4,200 words was plenty to get across the government’s argument. I would imagine Heytens/Dreeben are primarily responsible for it.
Orin, is there an obvious reason that AG Holder isn’t on the brief?
Quote
November 25, 2009, 9:47 amSusieber says:
Here is the Wired version of Orin’s take: “Obama Wants Computer Privacy Ruling Overturned.”
Quote
November 26, 2009, 9:36 amLinebacker says:
Orin, Is this the final, filed version of the brief? The line spacing is off on page 10, and the document author in the PDF properties is “njudish,” a name that does not appear on the filing.
Quote
November 30, 2009, 6:53 pmMyrtle Beach Attorney says:
If you would like to find information about Colorado Springs Real Estate, visit the Real Estate Book, the web
Quote
December 2, 2009, 7:31 pmjohn kowalczyk says:
Does anyone know if there were any briefs filed by the deadline besides the one filed by DOJ? You can reply to:
johnkowal@aol.com
Quote
December 9, 2009, 11:26 am