The Volokh Conspiracy

The final version of my latest article, Ex Ante Regulation of Computer Search and Seizure, 96 Va. L. Rev. 1241 (2010), has now been posted on the Virginia Law Review‘s website.

The new opinion is here, and it comes almost a year after the DOJ petitioned for super-en-banc rehearing.

On a very quick read, it seems that the weird mandatory rules part of Judge Kozinski’s initial en banc majority opinion in CDT is now just part of a Kozinski concurrence to what has been relabeled a per curiam majority opinion. Further, Kozinski’s concurrence now explicitly states that those rules are just “guidance” to magistrate judges that “offers the government a safe harbor” that “significantly increases the likelihood that the searches and seizures of electronic storage that they authorize will be deemed reasonable and lawful” rather than as some sort of mandatory scheme. Judge Callahan notes:

The concurrence is not joined by a majority of the en banc panel and accordingly the suggested guidelines are not Ninth Circuit law.

I’ll have to give this a more careful read to figure out exactly what parts of the original CDT en banc opinion may still be in the final en banc version, but clearly this is a major change: The truly dramatic and revolutionary parts of the original en banc CDT opinion are no longer Ninth Circuit law.

The original set of judges who joined the en banc majority opinion in full was Kozinski joined by Kleinfeld, Graber, Wardlaw, W. Fletcher, Paez, Berzon, and M. Smith. The same judges joined the new shortened majority opinion, and Judge Kozinski’s concurrence was joined by Kleinfeld, W. Fletcher, Paez, and M. Smith. Thus, Judges Graber, Wardlaw, and Berzon were the judges who originally joined the en banc majority opinion but did not join even the softened guidance section after DOJ petitioned for super-en-banc.

Once in a while folks ask me what happened to the request for super-en-banc rehearing in the Ninth Circuit, filed back in November of last year, in United States v. Comprehensive Drug Testing. The short answer is, nothing has happened. Nine months later, the Ninth Circuit hasn’t ruled yet on whether to go super-en-banc. If you’re interested in reading more on the legal issues raised by CDT, my article on that will be out in October; a pre-publication version is available here.

I have just posted a new draft article, Ex Ante Regulation of Computer Search and Seizure, forthcoming in the Virginia Law Review.

The article is a response to dynamics that have been evolving over the last decade in the lower courts that were turned up to eleven by the Ninth Circuit’s en banc decision in United States v. Comprehensive Drug Testing. The article therefore has a lot on Comprehensive Drug Testing, although it covers much more broadly than that one case.

Here’s the abstract:

In the last decade, magistrate judges around the United States have introduced a new practice of regulating the search and seizure of computers by imposing restrictions on computer warrants. These ex ante restrictions are imposed as conditions of obtaining a warrant: Magistrate judges refuse to sign warrant applications unless the government agrees to the magistrate’s limitation on how the warrant will be executed. These limitations vary from magistrate to magistrate, but they generally target four different stages of how computer warrants are executed: the on-site seizure of computers, the timing of the subsequent off-site search, the method of the off-site search, and the return of the seized computers when searches are complete.

This Article contends that ex ante restrictions on the execution of computer warrants are constitutionally unauthorized and unwise. The Fourth Amendment does not permit judges to impose limits on the execution of warrants in the name of reasonableness. When such limits are imposed, they have no legal effect. The imposition of ex ante limits on computer warrants is also harmful: Ex ante assessments of reasonableness in ex parte proceedings are highly error-prone, and they end up prohibiting reasonable practices when paired with ex post review. Although ex ante restrictions may seem necessary in light of the present uncertainty of computer search and seizure law, such restrictions end up having the opposite effect. By transforming litigation of the lawfulness of a warrant’s execution into litigation focusing on compliance with restrictions rather than reasonableness, ex ante restrictions prevent the development of reasonableness standards to be imposed ex post that are needed to regulate the new computer search process. Magistrate judges should refuse to impose such restrictions and should let the law develop via judicial review ex post.

Comments welcome, as always.

Two weeks ago, I wrote a post seeking updates on United States v. Payton, a Ninth Circuit computer search and seizure decision that I think was wrongly decided. Howard Bashman notes that on Friday the Ninth Circuit handed own this seven-page order explaining what happened. It seems that there was interest in rehearing the case en banc from at least one member of the Ninth Circuit, but that mootness may have gotten in the way because the government concluded there were bigger fish to fry in the CA9 and did not seek rehearing. The court also concluded that it should not vacate its decision in light of the mootness, which I think was procedurally correct even though I think the decision itself was wrong. So the bottom line is that Payton stays on the books.

Back in August, I wrote a long post about the Ninth Circuit’s very dubious computer search and seizure decision in United States v. Payton, 573 F.3d 859 (9th Cir. 2009). I speculated about the possibility the opinion might be revised or overturned en banc, but I wrote that post a week before the en banc Ninth Circuit handed down its nutty computer search and seizure decision in United States v. Comprehensive Drug Testing, 579 F.3d 989 (9th Cir. 2009) (en banc) (“CDT“). I’m trying to figure out whatever happened to Payton, especially after CDT.

Last I recall hearing, the Payton panel had sua sponte asked the government whether it wanted to seek rehearing in Payton. Does anyone know how DOJ responded? I would imagine DOJ was in a very tricky position. Sure, you want rehearing because the original panel goofed. But after CDT, who on earth knows what could happen en banc? You never know if the panel is asking because they sense they got it wrong or because they want a fresh canvas to paint CDT Part II. Anyway, I figure someone among our readership must know what (if anything) happened with Payton. Off-blog and off-the-record responses welcome.

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.

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.