The Ninth Circuit's new computer search and seizure decision in United States v. Comprehensive Drug Testing is a truly astonishing decision. The majority opinion, by Judge Alex Kozinski, announces a laundry list of brand-new rules, introduced with no citations to any authority, that henceforth the government must follow when executing warrants for digital information. I can't recall having read anything quite like it, although it does bring to mind Miranda v. Arizona.

   Judge Kozinski helpfully sums up the new rules the Ninth Circuit has announced as follows:

When the government wishes to obtain a warrant to examine a computer hard drive or electronic storage medium in searching for certain incriminating files, or when a search for evidence could result in the seizure of a computer, see, e.g., United States v. Giberson, 527 F.3d 882 (9th Cir. 2008), magistrate judges must be vigilant in observing the guidance we have set out throughout our opinion, which can be summed up as follows:
1. Magistrates should insist that the government waive reliance upon the plain view doctrine in digital evidence cases. See p. 11876 supra.
2. Segregation and redaction must be either done by specialized personnel or an independent third party. See pp. 11880-81 supra. If the segregation is to be done by government computer personnel, it must agree in the warrant application that the computer personnel will not disclose to the investigators any information other than that which is the target of the warrant.
3. Warrants and subpoenas must disclose the actual risks of destruction of information as well as prior efforts to seize that information in other judicial fora. See pp. 11877-78, 11886-87 supra.
4. The government's search protocol must be designed to uncover only the information for which it has probable cause, and only that information may be examined by the case agents. See pp. 11878, 11880-81 supra.
5. The government must destroy or, if the recipient may lawfully possess it, return non-responsive data, keeping the issuing magistrate informed about when it has done so and what it has kept. See p. 11881-82 supra.

  I should add that I think these rules are being announced as Fourth Amendment rules, although at first blush that's not entirely clear: The opinion is remarkably light on the sources of its authority.

  Also, I should add that I'm not sure what most of Judge Kozinski's new requirements actually mean. To pick one example, what does it mean to "waive plain view"? Is the idea that the government promises not to rely on the Fourth Amendment's plain view doctrine to admit evidence out of the scope of the warrant? I have never seen anything like that, and I don't know if such a waiver is even enforceable.

  I'll probably blog a lot about this case over the next few days: This is the most free-wheeling, "look ma no hands" legal decision I've read in a long time, so there is a lot to digest.