On December 18th, the en banc 9th Circuit will hear oral argument on an important case involving how the Fourth Amendment applies to the search and seizure of computers. You can read the revised panel decision
(5.2mb). I've written a lot about these issues and I worked extensively on them back was at the Justice Department in 1998-2001. Given my writing and past work in the area, I wanted to blog some thoughts about the case.
The facts of the case are quite complicated, but here at the basics. The government has been investigating steroid use in baseball, and it obtained warrants for computers owned by the third party company, Comprehensive Drug Testing, that ran the steroid tests. The warrant sought the records of 10 specific players, combined with any "[a]ll manuals, pamphlets, booklets, contracts, agreements and any other materials detailing or explaining" the "administration of Major League Baseball’s drug testing program."
During the execution of the warrant, much of the day was spent in negotiation between the government and CDT as to exactly where the information was located and how it could be copied. The government ended up not taking any equipment, but it did copy a directory of files, called the Tracey directory, that contained a lot of records beyond the mere 10 specific players sought in the warrant. There is some dispute among the parties (and the judges in the panel opinion) as to why the government copied the entire directory rather than stay onsite and only copy the records of the 10 players. Although the facts are kind of unclear on this, it looks like the government ended up looking through the Tracey directory for evidence within the scope of the warrant, and then discovered lots of stuff involving other players' steroid use and sought to expand the investigation on that basis.
In this case, CDT and the Major League Players' Association have challenged the search warrants and the expanded investigation, arguing on behalf of the other players' interests. Rather than waiting for charges to be filed, which would then lead to a motion to suppress, the groups are trying to assert the Fourth Amendment rights of the unindicted players outside the scope of the initial 10 players using the procedural vehicle of a Rule 41 motion for the return of property unlawfully seized. The question is, should the motion be granted and the investigation preemptively stopped in its tracks? Or should the government be allowed to proceed?
This case is particularly interesting because it ends up at the intersection of two distinct problems that I used to deal with a lot when I worked at the Justice Department. As I noted in
, computer warrants are usually executed in two stages: the physical search stage and the electronic search stage. First, the government goes and takes the files away (the physical stage), and second, the governments searches through the files obtained for the evidence sought by the warrant (the electronic stage). This raises two distinct problems in cases like CDT. At the physical stage, the problem is how to minimize the intrusiveness of the on-site search at operating third-party business. At the electronic stage, the problem is how to minimize the intrusiveness of the off-site search.
(a) Minimizing at the First Stage
The problem at the first stage is this: How should the government execute warrants for electronic information held by third party businesses? For those with a long memory, this is the
Steve Jackson Games problem: The government may have probable cause to execute a warrant seeking digital evidence, but actually finding that evidencer is usually incredibly hard The government could just go in and take all the third party servers and search them offsite, as it usually does when executing a warrant for computers at a home. But that's a huge disruption of the legitimate third party's interests: ideally, the government needs to both minimize the interference with the third party business and yet also get the information it is entitled to get in the warrant. Plus, from a practical standpoint, if the third party doesn't like how the warrant is executed, the third party is likely to raise a stink and may sue under statutes like the Privacy Protection Act — as the government learned in
Steve Jackson Games.
In a perfect world, the third party would always work with the government and would do most of the work for it. That greatly minimizes the interference with the third party's interests. But that's just the perfect world: The real works is usually messier, especially outside the ISP setting, and there are no easy answers. The information can be anywhere, and the government doesn't know who exactly it can trust. The third party might be helpful, but then it might be untrustworthy or might not fully appreciate the government's rights to execute the warrant. What to do in light of the uncertainty?
Back when I was at DOJ, we ended up advising agents and AUSAs to do their best to work with third parties and to try to minimize the interference with the third party's interests — with the caveat that there was really no way to know how to optimize the problem. The Fourth Amendment didn't really place any limitations on these processes if the government had a valid warrant, but we were pretty worried about the prospects of civil suits under the Privacy Protection Act after
the district court opinion in Steve Jackson Games. So we essentially advised agents to try to "play nice" to avoid problems.
(b) Minimizing at the Second Stage
The problem with the second stage is the needle in a haystack problem. The government now has the computer or file offsite, and the warrant authorizes the search for the evidence in it. But how to execute the warrant, given that computer searches are so invasive given that so much information is always mixed together? How can you ensure that searches remain narrow given the need to search for the needle in the haystack? There are two basic approaches: Ex ante approaches, which would place judge-approved limits on how the search can occur beforehand, and ex post approaches, which would review the government's conduct and exclude that which violates the law after the search occurs.
I wrote a law review article on this issue in which I conclude that review must be ex post, not ex ante. Ex ante review just doesn't work because no one has any idea of what kind of ex ante restrictions are appropriate in any particular setting. Judges are not computer forensic experts, and even the world's greatest computer forensic experts can't predict with certainty how the analysis of a computer will unfold. I argue in the article that ex post restrictions are the only serious option, but they really require a tightening of the plain view exception (and ultimately, its end) to be effective. Rather than remaking that argument here, I'll just refer the reader to the article and the relevevant section:
Searching and Seizing Computers in a Digital World, 119 Harv. L. Rev. 531, 565-84 (2005).
III. How Should the Ninth Circuit Resolve This Case?
Okay, so enough set-up: What should the Ninth Circuit do? My own view is that the government should win at this stage on procedural grounds. The court is adjudicating a motion to return property under Rule 41, which is a motion for a return of property that was unlawfully seized. The general idea behind such motions is that if the government has seized property outside the scope of a warrant, you can sue to get the property back.
But here CDT and the players' association are trying to convert Rule 41 motions into a very different sort of relief: They want the Ninth Circuit to treat a Rule 41 motion as a sort of preemptive motion to suppress, creating a sort of ex-ante use restriction on what the government learns from the search. It's a very strange idea, sort of a preemptive suppression rule on steroids (so to speak). As far as I can recall, I have never seen anything like it.
What makes this unusual procedural move extra strange is that we don't even know who the people are whose rights are being vindicated. As I understand it, the objections to the search are being brought by the drug testing company and the player's association on behalf of other players who may have violated the law but who were not targeted by the initial warrant. No one actually knows who these people are, as I understand it.
If this issue arose in the context of a motion to suppress, only the actual persons whose Fourth Amendment rights were at issue could file such a motion. They would challenge the exact search that led to the discovery of the evidence against them, and there would be a hearing as to the exact facts. But here the challenge to the warrant is being brought as a sort of universal standing challenge: The idea is that the challengers want the courts to craft a remedy that will protect everyone who might have a Fourth Amendment right in the information, whoever that might be.
I'll hand it to the lawyers for CDT and the Players' Association: They're great attorneys, and they're being very aggressive in trying to get these issues litigated at this stage long before most courts would even look at these questions. But I think the Ninth Circuit should decline to use Rule 41 in this newfangled way. The challengers here are asking for a level of judicial involvement in the search warrant process that you don't normally see, all at a very early stage before judges normally get involved, all in an area with very uncertain facts and rapidly changing technology. I would follow the Sixth Circuit's lead in the
en banc Warshak opinion and decline to jettison the traditional procedural limits on judicial rulings about such matters.
If the Ninth Circuit judges conclude that they are comfortable with this case procedurally, then the question is how to deal with the two different stages of the searches.
In my view, the restrictions here shouldn't come at the physical stage. I worked on a lot of these cases when I was at DOJ, and the execution of the warrant that led to the "Tracey" file is about as narrow as searches get. When I was at DOJ, our focus was on avoiding the seizure of physical stuff: We didn't want to take the servers away, in light of
Steve Jackson Games. A search at a business in which the main item copied was a folder of only a few thousand files would have been considered a remarkable privacy success. Indeed, if the government had only drafted its initial warrant differently, it would have avoided this problem altogether: A search for evidence of illegal steroids in major league baseball -- rather than of the ten players -- would have been upheld under Ninth Circuit precedent as sufficiently particular, and it would have made the other evidence in the "Tracey" file within the scope of the warrant.
More broadly, most computer searches are much broader and more invasive in scope than the warrant in this case. Consider that it is routine practice (allowed widely by the courts) to take personal computers at a home and copy all the hard drives. Given that a typical computer might have an 80GB hard drive, a warrant at a business that led to the copying of the Tracey file is a remarkably small amount of information. The government had a valid warrant: Although the fact that it was executed at a third party raises special concerns, the valid warrant gives the government the flexibility needed to execute the warrant with only deferential review. See
Dalia v. United States, 441 U.S. 238 (1979);
Zurcher v. Stanford Daily, 436 U.S. 547 (1978).
That brings us to the second stage of things, the electronic search. Let's assume that the Ninith Circuit holds that it was a seizure to copy the file; that the file retained a reasonable expectation of privacy; that looking through the copy therefore was a separate search. (These aren't obvious steps, incidentally, but the Ninth Circuit would need to reach them to get to the second stage.) How should the Ninth Circuit limit the scope of the second stage?
In my view, ex ante restrictions — what has generally been known as the
Tamura approach — is the wrong way to go. First, I don't think it actually works, as I have
argued elsewhere. It ends up just being a formality, stock language that ends up having no real force, because no one can predict how the search will need to unfold. Further, the U.S. Supreme Court has made pretty clear as a matter of doctrine that warrants regulate what the government may search for and what it may seize, but not the "precise manner" in which they are executed. As the Court put it in
Dalia v. United States, 441 U.S. 238 (1979):
Nothing in the language of the Constitution or in this Court's decisions interpreting that language suggests that, in addition to the three requirements discussed above, search warrants also must include a specification of the precise manner in which they are to be executed. On the contrary, it is generally left to the discretion of the executing officers to determine the details of how best to proceed with the performance of a search authorized by warrant — subject, of course, to the general Fourth Amendment protection "against unreasonable searches and seizures."
That general protection is generally measured ex post in a motion to suppress, not ex ante in some sort of procedures to be followed to execute the warrant. The Ninth Circuit could try to work its way around that, but the last time that was tried the Supreme Court caught on and reversed them. See
United States v. Grubbs, 547 U.S. 90 (2006) (overturning ex ante Ninth Circuit rules on the execution of anticipatory warrants).
So that brings us finally to the plain view exception. As I argued in my Harvard article, I think that's the rule that should change: Plain view needs to be narrowed, and in my view, may ultimately need to be abandoned in digital searches altogether. The plain view exception is based on an understanding of the role of the particularity requirement that is inaccurate for digital searches: The particularity requirement imposes much less of a limitation in the digital search context, and I think ultimately the most serious way to restore the role of the particularity requirement in digital evidence cases is to limit or abolish plain view; otherwise the exception swallows the rule. (Read
the article for more.) Interestingly, Judge Thomas in his dissenting panel opinion makes a somewhat similar argument at 1192-93.
If the Ninth Circuit holds that the plain view exception doesn't apply in digital evidence cases, however, that would create a pretty clear circuit split with the 10th Circuit and its 1999 Carey decision. If that happens, it may be that the Ninth Circuit isn't the last word in the case.
IV. Postscript
Anyway, that's my basic take on the case. There are a lot of other issues raised by it that received considerable attention in initial panel opinions, but this post can't go on forever.
A final thought is that Congress could sensibly regulate this sort of problem with a rule targeted just for searches involving medical records. One of the things that sensibly gets folks worked up about this case is that they involve medical data: Whether or not you have
Fourth Amendment rights in medical records (this is actually an interesting question — try squaring
Skinner v. Railway Labor Exec. Assoc. with the third party doctrine cases like
United States v. Miller), certainly there are extremely strong privacy interests there.
Congress could avoid some of the difficulties here by expanding on the Privacy Protection Act, 42 U.S.C. 2000aa, to have special rules for searches involving medical records. For example, perhaps a special master could be required as a matter of statutory law. While special masters have tended to be a poor solution to computer searches and seizures generally — they take years, for example — perhaps thay would be a good idea for medical privacy cases. It's hard to impose that as a Fourth Amendment rule, but it would be sensible policy for Congress.
Orin, can you elaborate on this a bit please? (And as a general matter, not just how it applies to this case, necessarily.)
Suppose I hire a third party (e.g. a company that hosts computer servers) to handle my information, and I take steps, together with that party, to try to ensure my information is kept private (at least within my own company's internal business dealings, meaning it's not made public to anyone outside of my business).
If the govt obtains a search warrant to get that company's computer hard drives, or any part of them containing my information, do I have standing to challenge the warrant?
I guess I would have to add also that the third party I contracted with has access to my data, by virtue of its position as the owner of the computer servers.
To me, this is analogous to renting out a storage locker at a private facility, where I can put a lock on my unit's door, but the facility can also access the unit.
Assuming you had an REP in the relevant data, you could challenge the search by filing a civil suit or moving to suppress evidence against you. But in that case you would be asserting your own Fourth Amendment rights, not someone else's.
By "REP" you mean expectation of privacy? I'm generally aware of what factors determine that (subjective and objective expectation), but how does this play out in the context of a computer server hosted by a third party?
Suppose the third party (say it's an independent contractor, if that makes any difference) actively manages my data along with me. They see it every day because it's part of the job for which I've hired them -- managing my otherwise-private network traffic.
Is this like Miller then, where my exposing the information to a third party basically eviscerates my expectation of privacy?
I note that even for a 1990 seizure, the district court found:
(emphasis added). If the SJ raid had descended on their computers, pulled the hard drives only long enough to duplicate them, reinstalled, and rebooted the computers in question, the publishing-related disruption to SJ Games would have been greatly (and probably completely) diminished.
As an aside, would such a solution comport with the FRE if the government seeks to introduce evidence acquired from review of the bit-for-bit copy, rather than the original? One potential solution would be to install the copy drive and retain the original, although this may present some minor technical challenges in the case of non-identical hardware (partition sizing, physical hard ddrive performance, reliability, etc).
When MLB and the MLBPA agreed to drug testing -- a very contentious issue -- part of the agreement was that the first year of testing would not reveal the names of any players and that there would be no penalty for any positive result. If the number of positive tests fell below a certain level, no future testing would be permitted. If the number of positive results was above that level, then a testing system would be implemented. The reason for this arrangement was that nobody knew how widespread the problems were; the "no disclosure, no penalty" provision was intended to encourage the players not to try to cheat the tests and to allow the results to give an accurate picture.
When the government went after the test results as part of the BALCO investigation, it effectively undid this part of the collective bargaining agreement and cheated the expectations and even trust of the parties. Clearly the government had the power to do so; whether it was wise is another question. I'll note that the parties have now changed the testing agency to one based in Canada, presumably beyond the reach of further subpoenas.
Yet again, it seems to me that the "war on drugs" is leading to both bad policy and bad law.
Those facts are interesting, but irrelevant from a Fourth Amendment standpoint. Also, Canada isn't beyond the reach of the FBI subpoena power: the FBI can just use the US/Canada mutual legal assistance provisions to have the Canadian authorities get the info for the FBI.
As for the Canada firm, the new provisions also require destruction of the samples (as did the original one; for unclear reasons, that didn't happen). If the government were to go after the new samples, I'm sure the next testing firm would be located in China. Or Iran.
If the sports industry decides that it wants to eliminate certain drugs, that's something which (I assume) the government would want to encourage. Using the criminal process in circumstances like this destroys the trust necessary to do so.
That may be. But I'm a Fourth Amendment fan, not a baseball fan, so I couldn't tell you one way or the other.
As for me, my concern of policy is more concern of equal treatment under the law: I don't want the courts treating baseball players differently than anyone else just because they are wealthy and famous.
Then you certainly should oppose this subpoena. The players are being targeted solely because they're wealthy and famous. Unless the feds have also subpoenaed test results from the truckers that I don't know about, in which case I'll retract my comment.
My concern is with the law, though, not whether the prosecutors are targeting high profile defendants for deterrent value in a way that is fair or unfair. If the law of subpoenas permitted a grounds to quash a subpoena on the grounds that I would rather the investigation not occur, then I suppose I could look into the equities in that way. But unless I'm missing something, the law provides no such grounds for the quashing of the subpoena.
Put another way, I'm interested in what the judiciary should do as a matter of law, not whether I like what the executive is doing as a matter of policy.
The way I see it, the two issues aren't entirely separable. The 4th A rests, at least in part, on a concern for executive overreaching. I think we ought to interpret the amendment with that purpose in mind.
That is an interesting new theory of interpretation, and it's interesting to think of how different it would be from the world we have now. But I was assuming the issue here was what the Ninth Circuit should do if they follow the law, not what the Ninth Circuit should do if they conjure up a new theory of what the Fourth Amendment should mean. But then it's the Ninth Circuit, so who knows.
I researched my above question a bit, and found an interesting Sixth Circuit opinion (Warshak), which was subsequently vacated by an en banc panel on ripeness grounds.
Do you have any opinion on the original panel's description of the substantive issues I raised above (as opposed to the procedural issues, which I note you have already objected to)?
What MLB and the Players' Union are trying to do is keep secret the evidence that numerous baseball players were cheating. So they made an agreement that was designed to ensure this was the case.
On a policy level, there's no reason whatsoever that the contractual preferences of baseball and the players union that their sport and its top players not be proven to be a bunch of dopers should get any weight at all.
That said, Professor Kerr is right that as a matter of Fourth Amendment law, this issue is not germane to the case.
It's not clear to me why the federal government is in the business of policing the equality of competition preferences of MLB, particularly when doing so undermines a collective bargaining agreement. Nor is it clear to me why the government should be permitted access to confidential records in order to decide who it might want to investigate. Nor is it clear to me why the government should be allowed to do all that in order to access search results it couldn't have gotten on its own.
And that's putting aside the fact that the government had little business scheduling steroids in the first place.
Won't somebody please think of the children...
If you would like my views on Warshak, I wrote about a dozen posts about that case; you can read them here.
Collective bargaining agreements that protect cheaters (who are also likely lawbreakers) aren't worth protecting.
Look, I suppose you can take a "whatever a union does is good" approach to this, but not only is the MLBPA a union of multimillionaires with little to do with normal union issues, but this is a work rules dispute where the interest of the collective bargainers was precisely contrary to the interests of the public.
Again, from a Fourth Amendment standpoint, none of this matters. But if, as a result of an investigation of illegal conduct, we get to find out who cheated, that's a lot more important than upholding a conspiracy / cover-up that happened to be enshrined in a collective bargaining agreement between two groups of very rich people.
Thanks. I saw the post re your procedural objections, but not the substantive ones.
BTW, I ordered a copy of your casebook too. (Albeit a used one.)
Cool. Hope you like it!
As far as I know, every collective bargaining agreement ever made provides some form of protection for people who don't deserve it.
As for the users being "cheaters", well that's the whole ballgame right there, isn't it? One "cheats" only if one violates the rules of the game. And that's precisely what the CBA was defining. I don't see any reason why outsiders should get to impose their own definition of "cheating". Personally, I think it's "cheating" for the Dodgers to win any games at all. Ever.
I'm not so willing to have the government run roughshod over the interests of the parties, particularly when it's not the business of the government to enforce rules against "cheating".
Nor is it accurate to describe the 2002 testing procedures as a "cover-up". To the contrary, they were, as I said above, specifically designed to discover valid information in order to decide what should be done in response. The only way to do that was to assure confidentiality -- otherwise athletes cheat the tests (as we know all too well). The government's behavior here means that nobody will ever learn the facts you claim to want to know.
If the data is not encrypted, the task is simple. You search the hard drive for instances of each ballplayer's name and quickly review the documents for relevancy. You do not need to look through every document on the drive. This was a testing lab, not an illegal drug operation, and the results files should be easy to find. In my opinion, the DoJ investigators deliberately 'found' evidence about other ballplayers. Such evidence should be discounted and destroyed.
Actually, not. The CBA only defines what procedures were used to detect cheating. It didn't define the use of steroids as "not cheating", nor could it, because the MLB rules committee, not the collective bargaining agreement, determines the rules of baseball.
Nor is it accurate to describe the 2002 testing procedures as a "cover-up".
Of course they were. The whole point of this procedure was to allow the players a year to transition off the steroids before the suspensions began, without disclosure of their awful activities. That's a year they should have never gotten and only did because they have a powerful union.
Also, bear in mind that it is ILLEGAL to use steroids to enhance baseball performance. As a fundamental principle, collective bargaining agreements that suppress evidence of illegal conduct should NEVER be enforced by the courts.
Finally, just as a general point, collective bargaining isn't sacred. It's just another form of contract between the parties. There's no particular reason to worship it. If the government has good reasons to override a collective bargaining agreement, it should do so. We shouldn't worship work rules just because a union came up with them. Many times (including this time), union work rules have very very bad effects and should be overridden.
Agreed. I was giving your side the benefit of the doubt without quibbling about terminology.
MLB has never, even today, made steroid or other drug use "against the rules". Instead, it has dealt with these issues through the CBA. Ordinarily, we don't refer to something as "cheating" unless it's against the rules. Here, it's not against the rules, but I'm willing to consider it as such now that MLB has undertaken to enforce its contractual provisions.
All this is corollary to my original point, which was that the government doesn't get to define "cheating" in MLB. Only MLB gets to do that. And when it does do so, it's not up to the government to enforce the rules. Only MLB gets to do that. The government's ONLY job is to enforce the criminal law.
You're making this up. The reasons for the provision were stated publicly, but you don't believe them. That's fine for you, but it has nothing to do with whether the government should get into the business of enforcing competition rules in MLB.
It's always illegal to use steroids without a prescription, whether to enhance baseball performance or for any other reason.
The CBA was NOT "suppressing" evidence. It was an agreement by players and owners to create evidence that otherwise never would have existed. The government could not have forced the players in 2002 to submit to drug tests. Thus, there's no "suppression" going on here.
Of course they aren't sacred. That said, they do serve important societal purposes and there should be good reasons for trampling on them. There are none here.
So if a union decides to create a record evidencing illegal activity, they get to ensure through mere contractual language that it never be disclosed to the government? Why should unions get this privilege if no other business entity does? Why shouldn't polluters get to refuse to turn over records of their polluting activities?
That said, they do serve important societal purposes
Only to the extent that general contracts do. Unions are just big corporations that look out for their members' self-interests, and their contracts reflect that. They should get no special privileges whatsoever.
As for the rest of your post, sorry, but steroid use has been banned by edict of the commissioner since at least 2002, before the collective bargaining process that you are referencing. There just weren't any penalties.
Finally, I can't help but comment that you seem to think that preserving the power of unions and ensuring that collective bargaining agreements aren't trampled upon is more important than informing baseball fans of who was actually cheating. I think that's terribly sad. The union and the owners were sheltering dopers for a long time. Getting these names out at least allows some rough justice to be imposed. Keeping them secret, meanwhile, upholds the principle that it's OK to break the law and bend the rules to win. But hey, it's not worth stepping on one of those sacred union contracts to do anything about that, right?
This makes no sense in context. The MLBPA did not violate any drug law here. It was the individual players who presumably did. Those players didn't have to agree to submit to drug testing, but they did so under a promise of confidentiality. Now the government is stepping into the situation and violating that promise. That's not precisely the case where an employer acts on the government's behalf, but it's pretty close.
I'm leaving aside other issues here that have been noted, such as the ease of separating out those players for whom they had a warrant, the justification for the evidence, etc.
I'm kind of surprised to find you union-bashing. Nevertheless, what's at issue here is NOT some privilege for a union, it's a right of the individual members. Again, they didn't have to agree; they did so as part of a bargain with their employer (who also agreed, yet another reason not to harp on the MLBPA). Now the players have lost the benefit of that bargain.
The commissioner couldn't ban them by himself. It was a subject of collective bargaining -- that was established in the cocaine cases in the 1980s. In any event, "banning" something with no penalty is meaningless.
Your argument also suffers from some serious chronology problems and some logical issues you may not accept. The commissioner's office issued its first edict against steroids in about 1989 (I'm going off memory). It was widely recognized then and after that the Commissioner had no power to issue this ukase.
The 1991 CBA (again off memory) generally prohibited the use of scheduled drugs (which steroids became shortly thereafter). Note that these "bans" remained unenforced and unenforceable both as to steroids and as to the more widely used amphetamines. By your logic, the use of amphetamines was "cheating" despite the fact that probably 85% of the players used them and that every single ML team not only knew of their use, but winked at it. The use of steroids was "cheating" despite clear evidence that MLB knew about the use and did nothing to stop it.
Well, yeah. I don't think the government should be in the business of telling me which MLB players were using steroids. It's sole job is to enforce the drug laws. If the government really wants to expose athletes, it should be going after the NFL. At a first approximation, 100% of them are using.
Moreover, there's one way and one way only to actually learn who was using steroids: take away the stigma. Then players will be free to admit what they did and we can all move on. Imposing criminal penalties will ensure that we NEVER get the information you claim to want.
Finally, you're just imposing your own values on others. Use of steroids and amphetamines was NOT cheating, no matter how many times you say it, as long as they weren't against the rules and the teams and players knew about them and did nothing to stop them.
That's true enough, but the question is whether private agreements to disclose illegal, rule-breaking conduct to one's employer under a promise of confidentiality should be enoforceable against the interests of the public and the government. And there's no reason to think that it should.
The commissioner's office issued its first edict against steroids in about 1989 (I'm going off memory). It was widely recognized then and after that the Commissioner had no power to issue this ukase.
What do you mean "no power"? The commissioner clearly has the power to determine whether steroids are permissible in baseball. What the commissioner doesn't have the power to do is impose unilateral discipline on the players (unless he determines it is in the "best interest of baseball"-- a big exception actually, but that's another story).
So steroids were clearly cheating as of 1989. They were cheating as of 2002. But the players' union decided to obtain contractual protections protecting the cheaters and lawbreakers. As far as the government is concerned, those contractual protections should be ignored. (Indeed, I don't think that they would even be enforceable if MLB decided to breach them, but that's another discussion.)
By your logic, the use of amphetamines was "cheating" despite the fact that probably 85% of the players used them and that every single ML team not only knew of their use, but winked at it.
Well, let's put it this way. The issue here isn't whether baseball was doing all it could to stop cheating. The issue here is whether we should honor private contractual agreements conveniently entered into by a union to protect the identity of lawbreakers and cheaters. The answer to THAT question is "no", whether or not baseball's efforts were serious.
Well, yeah. I don't think the government should be in the business of telling me which MLB players were using steroids. It's sole job is to enforce the drug laws. If the government really wants to expose athletes, it should be going after the NFL. At a first approximation, 100% of them are using.
Government IS enforcing the drug laws. As part of that enforcement, it has to override the desires of a greedy players' union that the cheaters not be exposed. But if there were no investigation of illegal conduct, those identities would have been protected.
Finally, you're just imposing your own values on others. Use of steroids and amphetamines was NOT cheating, no matter how many times you say it, as long as they weren't against the rules and the teams and players knew about them and did nothing to stop them.
These are not "my" values. Indeed, YOUR values are seriously off. Doping is not some minor thing. Lyle Alzado DIED because of steroids. Is that what you want?
International law prohibits doping in sporting contests. Federal law prohibits the prescription or use of these drugs for the purpose of enhancing performance in a sporting contest. This is cheating.
If you would like to live in an alternate reality where athletes can kill themselves with performance enhancers and hit 100 home runs in a season, I'm sorry, but that isn't the world we live in. And in the world we do live in, these people cheated and the union is trying to protect them. Screw the union and screw them.
I think there has to be a balance of factors here. The way I see it, steroid use is a malum prohibitum crime which injures nobody but the user. Collective bargaining agreements are generally good things which I want to encourage. I like the idea of the affected parties working to solve the problem. I don't like the idea of the government trying to take advantage of good faith disclosures to obtain evidence which it was prohibited from getting on its own. I don't think the government is being honest about the difficulty of particularizing the search. I don't think the government has any real interest in prosecuting the steroid users; to the contrary, the whole investigation seems to be directed at using government power to achieve public shaming. Altogether, that's not a balance that overcomes the other interests.
I meant what I said and I said what I meant. The Commissioner had NO POWER to determine whether steroids were permissible in MLB. That was expressly decided in the cocaine cases. It's not just a question of being able to punish (which, by the way, MLB made no effort to do). The Commissioner has no such power. Period. It's subject to collective bargaining, not unilateral implementation.
I'm surprised to see you make this claim. MLB itself always admitted it -- that's why there was, eventually, a new CBA provision which covered this.
Since the Commissioner lacked the power you claim, the premise for your argument falls apart. But let's explore the issue of cheating a little more.
IMO, cheating consists of (a) a rules violation (b) which the sport makes a good faith effort to punish and (c) which is generally considered cheating by the participants. The last provision is necessary to distinguish "cheating" from a simple violation of the rules. For example, running outside the baseline is a violation of the rules, but nobody refers to it as "cheating".
I've shown above that there was no rules violation here (and that's even with my concession to treat the CBA as a "rule" even though it's not).
Nor did MLB, at any time before 2003, make any effort whatsoever to punish the use of performance enhancing drugs. It was like the phantom tag at second base or the high strike -- there may have been a rule (in your view), but everyone ignored it. In fact, your claim of power in the Commissioner just makes this element worse from your perspective. Now, if the Commissioner didn't know about the steroid use, that might be different. But there's overwhelming evidence that he did know and that the owners knew as well.
Nor did the players themselves treat PED use as cheating. They all knew it was going on; some estimates are that 70% of players at least tried steroids, lots of players have since admitted that they knew it was going on, and amphetamine use was rampant and open. While I wouldn't expect players to call attention to cheating on their own teams, they kept quiet even about use on other teams. That's not the sign of a culture in which PED use was considered improper.
I have no idea what you're referring to here. A testing regimen is designed to catch users, not hide them. There never were any "protections" against use.
You can, of course, criticize the MLBPA for being slow to agree to the testing, but then MLB was slow to ask. Of course, if you take the view that MLB could have implemented anti-drug provisions unilaterally, then you have no basis for criticizing the union.
Your previous posts indicated approval of the fact that the government would expose "cheaters". That's not the government's role or purpose. Exposure is merely a collateral effect, not a purpose.
As I've shown above, your views on the issue of PEDs were neither shared nor enforced by MLB prior to 2003. They may have been (probably were) the majority among fans, but not among the players and management of the game.
This is commonly said, but there's no medical evidence it's true.
I'm not sure what the point is to this claim. Steroids are already illegal and we're not debating that (though I'll note that the AMA opposed the decision to schedule them).
I'm not aware of any such law. In fact, steroids seem to be easily available in many countries. AFAIK, the restrictions are imposed by each individual sport, not by any "law". Do you have a cite?
As I said above, this is not correct. Federal law prohibits the possession and distribution of scheduled drugs without a prescription. It says nothing specific about use in a sporting contest (or at least, it didn't say any such thing during the time period we're discussing).
No, they aren't. Sometimes, collective bargaining agreements are good things that raise wages and protect workers. Other times, they are bad things that impose work rules and kill off businesses. They are morally neutral, just like all contracts, and should not be encouraged or discouraged. And when they have the effect of protecting wrongful conduct, they should be ignored completely or vitiated.
I don't think the government has any real interest in prosecuting the steroid users; to the contrary, the whole investigation seems to be directed at using government power to achieve public shaming.
That's often true of prosecutions. But I would also add this-- the World Anti-Doping protocol isn't a figment of anyone's imagination. This nation has cooperated in multinational efforts to fight doping in sports. One could say that we should be a persistent objector to such things. But why would we want to be?
The truth is that doping, unlike other forms of drug use, doesn't just harm the user. It also harms all the other competitors, who are forced to also dope to keep up. That makes it a lot different. The reason that nations have universally recognized the need to stop doping in competition is because otherwise, the health of all the competitors-- even those who would never cheat in an environment where nobody else is-- suffers. In any event, this is the judgment that the US and the international community has made, and you are not at liberty to ignore it when analyzing whether the government action is fair.
Federal law prohibits the possession and distribution of scheduled drugs without a prescription. It says nothing specific about use in a sporting contest (or at least, it didn't say any such thing during the time period we're discussing).
Federal law also prohibits prescribing a scheduled drug for a non-medical purpose. That means no prescriptions for the purpose of performance enhancement in a sporting contest.
There are people in jail because of the BALCO scandal. Obviously the argument that it's not really illegal has been tested and has failed.
Look, the bottom line is that you think the entire enterprise of stopping cheating in sports is wrong. If the union decides that what they really want is for their members to be able to dope, that's what should count. And the federal government should use its prosecutorial discretion to let them do it. And to top it off, you deny that steroids are even dangerous!
Thank God you have no authority over these issues.
Putting aside some other problems I have with your claims here, let me focus on just 2:
1. It's not the government's business to regulate competition rules in sport. It is the government's business to enforce the drug laws. What I'm talking about is motivation here.
2. Your argument would be more persuasive if, in fact, there were any evidence that these drugs actually enhance performance. While it's logical to think they do, and while lots of people scream that "of course" they do, there's no actual scientific evidence that they do. One reason there's no such evidence is that the current drug laws discourage such research.
That's debatable. Steroids enhance recovery for athletes, whether from injury or simple fatigue (as amphetamines do). Those might well be seen as just as legitimate as a cortisone shot.
But the real reason I'm contesting your phraseology here is that it reads as if you think that federal law makes some specific reference to the use of drugs in sporting events. AFAIK, it does not. Thus, yet again, the government has no legitimate reason to be enforcing "clean competition" in sports as a goal. It's only legitimate goal is to enforce the drug laws.
I don't know of anyone who made such an argument. I certainly am not making it.
No, this completely mischaracterizes my position. I have no problem with MLB regulating itself. My position is that the government has no special brief to do so. Baseball players aren't pilots, where safety factors might justify government intervention. They're entertainers. If the government happens to arrest some ballplayers for violating drug laws, fine by me. But that's an incidental consequence of the government's actual role, not a goal in and of itself.
Again, this misstates my position. In the first place, the union agreed to testing. That's the opposite of "wanting members to dope". Second, I don't believe that, even if the union did "want" its members to "dope", the federal government would have to respect that. The government can and should enforce the drug laws. What it should not do is police the business of MLB. Though if it really wants to go where the bank robbers are (to paraphrase John Dillinger), it should be shutting down the NFL.
I'd call that a radical interpretation of the text. Denying that medical evidence supports the claim that Alzado's brain cancer was caused by steroids hardly amounts to a blanket exoneration of them.
Look, steroids get used all the time for legitimate medical purposes. HGH, the latest in the "let's ban them" craze, gets prescribed to children -- think of the children!! -- for no reason other than that they're short. The risks obviously aren't as great as the hysterics want us to believe.
That said, every drug has side effects and I'm not denying that steroids do also.
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