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What Happens When Comprehensive Drug Testing Meets the New Rule 41?:
One of the remarkable aspects of the new Ninth Circuit computer search and seizure case, United States v. Comprehensive Drug Testing, is that some of its new rules conflict with the new version of Federal Rule of Criminal Procedure 41 that the United States Supreme Court recently adopted and that is set to go into effect in December. What is going to happen when the new Rule goes into effect? Does the Supreme Court's rule trump the Ninth Circuit's case, or does the Ninth Circuit's case trump the Supreme Court's rule? The answer ends up being a little complicated.

  By way of background, Rule 41 is the rule that regulates federal search warrants. A new version of Rule 41 is set to go into effect in December, and several of its provisions are designed specifically to deal with the new dynamics of computer search and seizures. These rule changes have been in the works for a few years, and the United States Supreme Court adopted the new rules in March. (As an aside, permit me to add with a bit of pride that an article of mine originally helped spur the Rules Committee to address these questions; see Page 13 of this report.)

  It turns out that several of the new changes in the Rules are designed to deal with exactly the problems that the Ninth Circuit tried to solve with yesterday's case. But the two approaches are very different: The United States Supreme Court adopted one approach in March, and the Ninth Circuit then announced a conflicting set of rules yesterday.

  For example, consider the question of what the government is supposed to do when agents execute a search warrant for computers, copy the originals to analyze them, and then return the original. Can they keep the copy that they generated? The new version of Rule 41 says that they can. It states: "The officer may retain a copy of the electronically stored information that was seized or copied." But the Ninth Circuit announced the opposite rule yesterday. Judge Kozinski's opinion states: "The government may not retain copies of such returned data, unless it obtains specific judicial authorization to do so."

  Similarly, consider what kind of notice agents must give the issuing judge as to what was seized, something generally known as the "return" on the warrant. Does the notice need to be of what hardware was seized, or of what data was seized? The new Rule 41 states that the notice need only be of the hardware: "In a case involving the seizure of electronic storage media or the seizure or copying of electronically stored information, the inventory may be limited to describing the physical storage media that were seized or copied." Again, though, the Ninth Circuit's opinion yesterday announced the opposite rule: "within a time specified in the warrant, which should be as soon as practicable, the government must provide the issuing officer with a return disclosing precisely what data it has obtained as a consequence of the search, and what data it has returned to the party from whom it was seized."

  So what happens on December 1, when the new Rule 41 goes into effect? Does the new Rule 41 trump the 9th Circuit decision, or does the 9th Circuit decision trump the new rule?

  Formally speaking, the answer would seem to hinge on whether the new decision was announced as part of the federal supervisory powers authority or whether it was intended as a Fourth Amendment decision. Presumably, a rule handed down by the Ninth Circuit as part of its supervisory powers would give way to a contrary federal rule formally adopted by the United States Supreme Court. If so, then those parts of the new decision that conflict with the new federal rules will have a very short shelf life. On the other hand, if the new rules are intended as constitutional rules, then the Ninth Circuit's rule would trump the new federal Rule.

  So is the source of the Ninth Circuit's new decision the federal supervisory power, or is its source the Fourth Amendment? It's kind of hard to tell, as Ninth Circuit announced the rules with no citations to authority or discussion of where they were getting any of it. As best I can tell, the majority opinion does not bother to identify the source of its authority. At times the opinion mentions the Fourth Amendment, but not with particular seriousness: For the most part the court just handed down the rules.

  One complicating factor is that the Supreme Court has said that courts can't used the supervisory power as a sort of supplement to Fourth Amendment protection. Consider United States v. Payner, 447 U.S. 727 (1980), a case on the interaction between the Fourth Amendment and the federal supervisory power. In that case, the Sixth Circuit used the supervisory power to exclude evidence that the Fourth Amendment did not, as a sort of supplement to Fourth Amendment protection. The Supreme Court reversed, rejecting the use of the supervisory power "as a substitute for established Fourth Amendment doctrine."

  If the new Ninth Circuit decision is in fact a supervisory powers case, then it seems clear that the bulk of it is being used as a substitute for established Fourth Amendment doctrine: As I explained yesterday, the major rules in the case are designed to effectively negate the Fourth Amendment's plain view exception in the context of digital evidence cases. Under Payner, then, that would seem to be unlawful use of the court's supervisory powers (as Judge Ikuta's dissent suggests).

  On the other hand, if the new decision is a constitutional decision, then we end up with a very odd juxtaposition: The new case has several pages of new constitutional rules handed down with no citations based on no particular facts that conflict with rules the United States Supreme Court adopted just a few months ago.

  Either way, this is a pretty remarkable situation.
einhverfr (mail) (www):
On the new version of Rule 41, I notice it says that electronic data must be reviewed using methods set forth in the warrant. Does this reduce the plain view exception in this area? Or is it more form than function?
8.27.2009 8:35pm
mikel31244:
I think that the exact words of new Rule 41 are "Unless otherwise specified, the warrant authorizes a later review of the media or information consistent with the warrant." That would seem to mean that the search has to be for the items authorized by the warrant -- i.e., the usual list of items that are described with particularity and for which the applicant has demonstrated probable cause.

The Ninth Circuit's requirement that the government give up "plain view" discoveries in advance will have some bizarre results. Consider the following hypothetical:

Agents are investigating a copyright violation involving pirated movies. They examine the movies on a computer hard drive. The owner has changed the names of the files so that it is not obvious what each movie is. The agents preview the movie files to determine if each one is a copyrighted film. They discover a video of the defendant sexually molesting a six-year-old child. According to the Ninth Circuit, this child molester cannot be charged based upon what the agents have found, even though they were proceeding in a legitimate manner. The file was not within the scope of the warrant, but it was discovered using a search technique that was designed to find proper evidence.
8.27.2009 9:16pm
Lior:
[off-topic] Could some explain to a non-US non-lawyer why it is the Supreme Court that is issuing such rules instead of Congress?
8.27.2009 10:00pm
mikel31244:
Sometime in the 1940s, Congress passed the Rules Enabling Act that permitted the Supreme Court to draft rules of procedure. The Court submits the rules to Congress. If Congress does not act, they go into effect. Congress can reject them, alter them, or just permit them to go into effect.
8.27.2009 10:12pm
Bob Tufts (mail):
Under your interpretation of this case and rules, does a right of privacy exist?
8.27.2009 10:23pm
first history:
Rules Enabling Act (1934), 28 USC §§ 2071 - 2077:


§ 2072. Rules of procedure and evidence; power to prescribe

(a) The Supreme Court shall have the power to prescribe general rules of practice and procedure and rules of evidence for cases in the United States district courts (including proceedings before magistrates thereof) and courts of appeals.
(b) Such rules shall not abridge, enlarge or modify any substantive right. All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect.
(c) Such rules may define when a ruling of a district court is final for the purposes of appeal under section 1291 of this title.
.....
§ 2074. Rules of procedure and evidence; submission to Congress; effective date

(a) The Supreme Court shall transmit to the Congress not later than May 1 of the year in which a rule prescribed under section 2072 is to become effective a copy of the proposed rule. Such rule shall take effect no earlier than December 1 of the year in which such rule is so transmitted unless otherwise provided by law. The Supreme Court may fix the extent such rule shall apply to proceedings then pending, except that the Supreme Court shall not require the application of such rule to further proceedings then pending to the extent that, in the opinion of the court in which such proceedings are pending, the application of such rule in such proceedings would not be feasible or would work injustice, in which event the former rule applies.
(b) Any such rule creating, abolishing, or modifying an evidentiary privilege shall have no force or effect unless approved by Act of Congress.


I actually had the same question. It seems to me that Congress should create the rules of evidence, or at least require an affirmative vote before they go into effect.
8.27.2009 10:26pm
Oren:

The file was not within the scope of the warrant, but it was discovered using a search technique that was designed to find proper evidence.

The file was most certainly within the scope of the warrant, which was explicitly to search the movies on the computer for evidence of copyright violation.
8.27.2009 11:28pm
einhverfr (mail) (www):
mikel31244:

But this is what I am getting at.

You pull a hard drive to look for evidence relating to drug dealing. Are you also allowed to run scans for child pornography? Obscene private journal entries? Or does this mean that you can ONLY scan for documents which one can reasonably believe hold such information.

The thing is, once you are doing a block-by-block analysis of a hard drive, everything on that drive is "in plain view." Does this substantially restrict this? I.e. "no looking into swap space unless otherwise specified, no looking for files of types not listed in the warrant, etc?"
8.28.2009 12:54am
Lior:
Mike &history: thanks!
8.28.2009 1:14am
einhverfr (mail) (www):
(for example, a block by block analysis would be required in most journalled file systems to look for deleted files, but once you do that, the evidence you are looking for is along side everything else on the disk.)
8.28.2009 1:20am
SN (mail):
Could the new Rule 41 give the Supreme Court grounds to GVR the case for reconsideration in light of the intervening change in the law? That seems like a convenient and perhaps appropriate way for the Supreme Court to wipe this off the books and duck the issue to let it percolate a bit more. There's no doubt the intersection of the plain view doctrine and digital evidence is something that needs to be addressed eventually, but if we've made it this far then it can't be urgent, and I think it would be beneficial to the court to wait a bit to see how much the new Rule 41 ameliorates the problems, maybe allow some other circuits to weigh in (something it might not be able to wait for if all these prosecutions in the Ninth Circuit are about to be thrown into chaos), and perhaps having seen this decision will scare the government into considering a legislative solution less drastic than what the Ninth Circuit would impose.
8.28.2009 1:24am
jellis58 (mail):
Oh but Professor Kerr, tell us what you REALLY think of Comprehensive Drug Testing. Im starting to get the feeling that you might not like it very much ;)
8.28.2009 1:41am
OrinKerr:
Oh but Professor Kerr, tell us what you REALLY think of Comprehensive Drug Testing. Im starting to get the feeling that you might not like it very much ;)

I prefer to look on the bright side: As a public law scholar, such rulings are very good for business.
8.28.2009 1:50am
mikel31244:
Oren &einhverfr

In the hypothetical that I posed, the forensic examiner would have the forensic software search the hard drive for all files that were in video format. (This avoids looking at financial records, typed diaries, email on the hard drive, etc.) They would then be reviewed by a human to determine what they were. When the law enforcement officer sees the 6 year old performing oral sex on the adult male (or some other horrific video), s/he was performing a proper search. This search is similar to the officer executing a search warrant for counterfeit checks, who opens a desk drawer and finds 1 kg of cocaine in the drawer. That cocaine was in plain view because the officer was properly executing the warrant. (This would not be true if the officer were searching for a stolen car -- s/he had no reason to look in a desk drawer for an automobile).

The next question is: can the officer seize what s/he found. In the physical world, the cocaine is contraband and can be seized. In the computer search world, the smart officer will stop and obtain a second warrant, authorizing a search for, and the seizure of, images of the sexual exploitation of children. The Ninth Circuit approved proceeding in this way just last year. United States v. Giberson, 527 F.3d 882 (9th Cir. 2008).

If Comprehensive Drug Testing means that what the agent has found in plain view cannot be seized and cannot form the basis for a second warrant, the result is truly bizarre.

To answer einhverfr's question, I do not think that when searching for copyright violations the examiner can run a search of hash values for known child pornography images. That is not in the scope of the warrant.
8.28.2009 8:28am
David Newton:
Inferior court (Ninth Circuit), meet superior court (Supreme Court of the United States). Superior court always trumps inferior court.

Even if there is a problem at the moment, I imagine that when an appeal is made to SCOTUS it could be fast-tracked and heard before 1st December with a ruling being handed down quickly. The Ninth Circuit needs slapping down in this case, and slapping down hard (what a surprise!). Even if they are correct in their ruling, they have completely failed to cite the authority for their ruling according to Professor Volokh. That alone means that SCOTUS needs to take this case, and take it quickly to clear up the appalling confusion which has been created.

SCOTUS really does seem to have to clear up a lot of mess created by the Ninth Circuit.
8.28.2009 10:46am
Sparky:
"So is the source of the Ninth Circuit's new decision the federal supervisory power, or is its source the Fourth Amendment? It's kind of hard to tell, as Ninth Circuit announced the rules with no citations to authority or discussion of where they were getting any of it."

Not so. The opinion cites -- indeed, it is wholly founded upon -- United States v. Tamura (1982) 694 F.2d 591. And Tamura, in turn, was a Fourth Amendment decision, although it drew heavily on the ALI's Model Code of Pre-Arraignment Procedure. Basically, it held that compliance with the Model Code was sufficient to comply with the Fourth Amendment.

Under Comprehensive Drug Testing, compliance with the Model Code has somehow become not just sufficient, but necessary. Still, I think it has to be viewed as a Fourth Amendment decision.
8.28.2009 11:02am
shertaugh:
New FRCrimP 41: Statist view of the 4th Amendment's particularity clause

Judge Kozinski's en banc majority opinion: Libertarian--some might say originalist--view of the 4th Amendment's particularity clause.
8.28.2009 11:28am
Oren:

The next question is: can the officer seize what s/he found.

As Orin pointed out a number of times, computer searches invert the search/seize order of battle. The officer already has seized the entire drive.


If Comprehensive Drug Testing means that what the agent has found in plain view cannot be seized and cannot form the basis for a second warrant, the result is truly bizarre.

That is absolutely not the result.
8.28.2009 12:50pm
mikel31244:
Oren,

You wrote regarding my question about plain view:
"That is absolutely not the result."

How do you read point number 5 in the Ninth Circuit's opinion?
"Magistrates should insist that the government waive reliance upon the plain view doctrine in digital evidence cases."
8.28.2009 1:49pm
Oren:

How do you read point number 5 in the Ninth Circuit's opinion?
"Magistrates should insist that the government waive reliance upon the plain view doctrine in digital evidence cases."

That the evidence cannot be admitted without a second warrant.

I'll admit, it is incredibly confusing.
8.28.2009 4:11pm
zippypinhead:
"As a public law scholar, such rulings are very good for business."
Well, maybe good for YOUR business. But in yet another application of the Law of Unintended Consequences, I can pretty much guarantee that some of your former colleagues in DOJ are brushing up on Title III law in the Ninth Circuit, since for certain electronic crimes real-time monitoring can substitute for a computer warrant. Even with the immense hassle-factor associated with data wiretaps, at least the Ninth Circuit hasn't mucked up the rules governing THEM too badly yet...

But seriously, although I'm coming a bit late to this party (thanks to a long-overdue vacation) I see virtually nothing in the text of Comprehensive Drug Testing suggesting that the new restrictions are of Constitutional import. Assuming the new restrictions are simply prophylactic rules adopted by the Circuit through its inherent supervisory power, it's likely that anything facially inconsistent with the new Rule 41 is going to go away. However, I don't think we've heard the last of this issue - even the new Rule has enough wiggle-room built into it that a court with concerns about the scope of computer searches can impose some pretty draconian limits if it wants.
8.28.2009 4:30pm
patrickhenryisbackin09:
Impose draconian limits on the government? Have we gotten that far from 1776 that restrictions on invasive government powers are viewed as draconian?
8.29.2009 1:05am
Bob Tufts (mail):
The Bill of Rights is about what the government CAN'T do to us. PHenry is on point - since when is it "invasive" to keep the feds from being "invasive"?

I'm still hoping that one of the attorneys present will respond regarding the privacy issue - does privacy still exist under yout interpreation of the CDT case?
8.30.2009 12:23am

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