The latest issue of National Journal has this interesting article on United States v. Comprehensive Drug Testing, 579 F.3d 989 (9th Cir. 2009), the computer search case that may go super en banc.
As far as I know, no federal court has agreed with CDT in a written opinion since the decision came down in August. The only federal judge to have discussed CDT in any depth is Chief Judge Woodcock of the District of Maine, who noted that CDT is inconsistent with First Circuit precedent. See United States v. Farlow, 2009 WL 4728690 (D. Me., Dec. 3, 2009). Judge Woodcock then dropped a footnote offering several reasons why he thinks CDT is misguided:
From this Court’s perspective, CDT creates more problems than it solves. . . . The CDT protocols impose extraordinary precautions against police misconduct for all applications for a warrant to search a computer, assuming misconduct will be the rule, not the exception. There is no evidence that police disobedience of search warrant limitations is so widespread to compel such onerous pre-issuance procedures, and at the very least the more traditional remedies should be tried first.Moreover, CDT requires the issuing judicial officer to “insert[ ] a protocol for preventing agents ... from examining or retaining any data other than that for which probable cause is shown.” CDT, 579 F.3d at 1000. Even the most computer literate of judges would struggle to know what protocol is appropriate in any individual case, and the notion that a busy trial judge is going to be able to invent one out of whole cloth or to understand whether the proposed protocol meets ill-defined technical search standards seems unrealistic.
Finally, to require that the Government forswear the plain view doctrine is, in the Court’s view, an extreme remedy better reserved for the unusual, not common case. . . . The judicial directive to forswear in advance the plain view doctrine, placed in a different context, is equivalent to demanding that a DEA investigative team engaged in the search of a residence for drugs promise to ignore screams from a closet or a victim tied to a chair. To require the government before every computer search to forswear the plain view doctrine, which itself has its own constraints, seems unwise.
Andy McGill says:
The analogy to ignoring screams is extreme. The computer won’t tell you if there is a person held hostage in the next room, but if you read the thousands of pages of data on a normal home computer, you could probably find a tax fraud or minor crime on half of them. Moreover, you could find something embarrassing on almost all of them.
This issue is probably the privacy issue of our time.
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December 20, 2009, 1:30 amAcai Optimum says:
I totally agree with you Andy... This issue is a privacy issue of our time... Some people barely understand this though
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December 20, 2009, 1:41 amOrin Kerr says:
Andy,
You’re right that the “ignoring screams” analogy doesn’t work: It’s an exigent circumstances hypo, not a plain view hypo. But then plain view wouldn’t apply to tax fraud, either, as the illegality wouldn’t be immediately apparent.
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December 20, 2009, 2:27 amTweets that mention The Volokh Conspiracy » Blog Archive » “Cuffing Digital Detectives” -- Topsy.com says:
[...] This post was mentioned on Twitter by Eugene Volokh, Eugene Volokh. Eugene Volokh said: “Cuffing Digital Detectives”: The latest issue of National Journal has this interesting article on United State.. http://bit.ly/5h4ioI [...]
PersonFromPorlock says:
Judge Woodcock famously (here in Maine, at least) declared a bag of money found in the woods by two Mainers to be drug money and forfeit because a drug dog alerted on it — not the best evidence in the world, when 90% of the US cash in circulation shows drug residue. He is not known for restraining the exercise of federal power.
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December 20, 2009, 9:13 ammariner says:
I believe assuming that police misconduct will be the rule rather than the exception, is a good thing. We certainly have enough evidence that misconduct is widespread (if not out-and-out routine).
The Fourth Amendment was intended to protect the accused, not make things easy for cops.
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December 20, 2009, 5:20 pmArthurKirkland says:
With behind-the-times judges such as Judge Woodcock prepared to open the entirety of a citizen’s informational universe to overreaching law enforcement personnel at the drop of a minor warrant, it appears the liberal-libertarian alliance will once again be called upon to safeguard constitutional protections of American citizens’ liberty.
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December 20, 2009, 6:43 pmOrin Kerr says:
Arthur,
I don’t think Judge Woodcock is “prepared” to do that, or at least he doesn’t say so in that opinion. Also, what is a “minor warrant”?
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December 20, 2009, 10:15 pmDave N. says:
PersonFromPerlock:
Isn’t your post a text-book example of what is meant by an ad hominem argument?
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December 20, 2009, 10:30 pmPersonFromPorlock says:
No, because Judge Woodcock’s history of finding in government’s favor isn’t irrelevant.
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December 21, 2009, 8:28 amindiana says:
there’s case pending before the 7th Circuit that, once it’s decided, will cite this case. will be one of the few circuit decisions to outline 4th A law’s application to computer searches.
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December 22, 2009, 4:59 pmErasmo Holtberg says:
Is there any muscle-building supplement that you’d recommend? I wanna try one but I do not know which is best.
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December 29, 2009, 12:41 pm2L hell says:
@ Indiana:
Do you know the name of that 7th Circuit case? Or the cite (or any other identifying info) for the district court opinion?
Thanks!
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January 4, 2010, 12:37 pmIrving Lugar says:
Dang dude you have lots of wierd bugs on your blog about parse error unexpected T String in line 15
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February 12, 2010, 1:31 amCho Yung Tea says:
Interesting article on the United States vs Comprehensive drug testing. I liked the read, but I’m really tired of the government interfering with people’s private lives.
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March 31, 2010, 1:36 amMuscle Boost says:
Is this used as a stop smoking aid?
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April 8, 2010, 11:27 amwestern australia flowers says:
Very nice post......Great job done.
Enjoyed reading your article.
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April 16, 2010, 2:36 pmAdvanced Colon Max says:
Interesting article, I thought the days of digital detectives were over but I guess they’re just starting.
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May 7, 2010, 9:09 pm