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"Attorneys, Academics Sort Through Landmark Case on Computer Searches":
The Bureau of National Affairs Criminal Law Reporter has an in-depth story on the Ninth Circuit's remarkable computer search and seizure decision in United States v. Comprehensive Drug Testing. I have posted it with the permission of BNA. To clarify one comment I make at the end of the article, I think the Supreme Court will grant cert if DOJ files a petition. My concern about waiting for another case is about whether the SG's Office might try to wait for another case, not whether the Justices would.
ba2 (mail):
One thing not addressed is the effect on searches incident to arrest i.e. cell phones. If warrants are preferred under the Constitution does it make sense to give police carte blanche power to search the whole digital data device under a search incident to arrest but not under a warrant? There's a case out of Ohio State v. Smith 2008 WL 2861693 that says it's okay to search a cell phone incident to arrest but you can only use the stuff on it for which you had reasonable suspicion. You end up with a hybrid: pc + sia = okay for electronic storage.
9.16.2009 3:24pm
OrinKerr:
ba2,

One reason is is not addressed is that the case concerns warrants, not warrantless searches.
9.16.2009 3:35pm
ba2 (mail):
Prof Kerr
I think you're being very thorough. Rather than say "one thing not addressed" I should have said "one unknown ramification." I know the 9th circuit case concerns warrants but in the long term if crim procedure is going to be consistent, there shouldn't be incentives for warrantless searches where the Supreme Court strongly prefers warrants. There's got to be some added safeguards for inventory searches and searches incident to arrest of digital data as well. How many hundreds of sia's must there by for every warrant search?
9.16.2009 5:13pm
OrinKerr:
ba2,

One thing we know for sure is that if there are any needs for safeguards, the Ninth Circuit will be the court to invent them.
9.16.2009 6:16pm
zippypinhead:
My favorite quote from CLR:
''It's one of the strangest opinions that I have ever read,'' Kerr said.
Amen!

While it's always tough to predict what the Solictor General will do in any given case, it's pretty safe to assume that Comprehensive Drug Testing has caused a tremendous amount of heartburn in Federal law enforcement. And there's arguably already a circuit split, since just days before CDT, the 10th Circuit handed down U.S. v. Burgess, 2009 WL 2436674 (Aug. 11, 2009) reaffirming that there is no requirement that computer search protocols be specified in a warrant application. See also United States v. Brooks, 427 F.3d 1246, 1251-52 (10th Cir. 2005).

Frankly, I can't imagine how one can do computer searches in the Ninth Circuit as a practical matter as long as some of the bizarre restrictions imposed by CDT remain in force. I'm almost tempted to bet drinks for everyone in the house that it's going to be challenged...
9.16.2009 6:29pm
Dilan Esper (mail) (www):
One thing we know for sure is that if there are any needs for safeguards, the Ninth Circuit will be the court to invent them.

Professor Kerr, I think that's too flip a response to a legitimate point.

You've worked in this area long enough (and you certainly know more about it than I do) to know that computer searches raise new and complex questions that aren't necessarily persuasively addressed by prior precedents involving other types of searches. So even if the Ninth Circuit's approach was wrong (and I defer to your expertise on this question), that doesn't and can't impugn the enterprise of courts making adjustments to search and seizure doctrines to take into account the different privacy implications and competing interests involved in computer searches. The Fourth Amendment, after all, very much gives courts a primary role here (though obviously legislation could effectuate needed adjustments too).

And once that premise is established, it seems to me that ba2's concern is quite valid, which is that you don't want to craft your warrant requirements in such a way as to simply encourage warrantless searches instead.

It's a relatively new, evolving area, you've done a fair amount of work in it, the law is unsettled in many areas, and I suspect that the Comprehensive Drug Testing case isn't going to be the last instance you see of courts trying to make some significant adjustments to Fourth Amendment doctrines to deal with computer searches.
9.16.2009 7:49pm
Nobody Special:
FWIW, one of my spies tells me that DOJ has already issued some very extensive internal interim guidance as to how prosecutors should handle computer search warrant applications in light of the BALCO decision. I suspect it might be very enlightening reading -- unfortunately, it's undoubtedly also FOIA-exempt. Darn!
9.16.2009 9:45pm
OrinKerr:
Dilan,

I think the rule of law applies to judges, too. But you may disagree, I realize.
9.16.2009 10:47pm
Dilan Esper (mail) (www):
I think the rule of law applies to judges, too. But you may disagree, I realize.

The "rule of law" doesn't mean the same thing as "slavish adherence to precedent in situations where the equities balance differently".

Or to put it another way, the rule of law is not simply the law of rules.
9.17.2009 2:44am
OrinKerr:
Dilan, why?
9.17.2009 4:20am
Dilan Esper (mail) (www):
Professor Kerr:

Well, how deep do you want to go? You know, HLA Hart was kicking around "no vehicles in the park" over 50 years ago. There is, of course, a lot of disagreement among jurisprudential scholars as to exactly what the "rule of law" requires, but my view is that while one can distill principles and policies from legal authorities, including cases, statutes, and other materials, it is rare that an authority is on point and much more common that courts have a lot of discretion when it comes to distinguishing authorities and reweighing and rebalancing when new cases are heard.

And no useful conception of the "rule of law" can really prohibit this, because, after all, any rational person would WANT a court to distinguish a rule in a circumstance where it shouldn't apply, wasn't intended to apply, wasn't foreseen to apply, or would give rise to an unjust result when it applies. (Hence my reference to Scalia in my earlier comment-- he and some other conservatives seem to have almost a fetish about cases where their alleged fidelity to rules leads them to endorse awful conclusions, such as, for instance, that the Constitution doesn't prohibit executions of innocent people. Most human beings, I suspect, would argue that if a rule leads to a terrible result, that's a good reason not to follow the rule rather than a reason to be proud that you followed the rule and imposed the terrible result.)

So what, then, does the rule of law really impose? To me, the most persuasive argument is that it imposes a sort of good faith test. If the principles derived from existing authorities were intended to lead to a given result in a given case, and there aren't material factual differences between the case and the prior authorities, you have to apply the rule, even if you don't think it is just. Put another way, the rule of law requires the consistent application of rules to the definable class of cases where the rules were intended to apply and foreseeably would apply.

Now, under that framework, you still may very well be right about the Ninth Circuit, both on the level that the rules are unworkable and on the level that the Supreme Court has spoken in this particular area, its decisions were intended to apply even in the realm of computer searches, and the Ninth Circuit is not at liberty to ignore them. As I said, I defer to your expertise on Fourth Amendment law, a subject I only have a passing understanding of.

But it's a lot more complicated than "there's a rule and the Ninth Circuit must follow it", especially where we are discussing a new and novel area where the competing equities, the principles and policies, balance out very differently than they do in conventional searches. The rule of law doesn't compel that every rule always be applied outside its context.
9.17.2009 12:29pm

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