Ninth Circuit Considers Super-En-Banc for Comprehensive Drug Testing

I haven’t blogged recently about the Ninth Circuit’s blockbuster computer search and seizure decision in United States v. Comprehensive Drug Testing, although not because it hasn’t been on my mind: Among computer crime law folks, it’s topic #1 these days. Indeed, since the en banc decision was handed down, it seems that every conference and informal gathering in the field eventually morphs into trying to figure out what the majority was smoking opinion means, how judges should comply with it, how law enforcement should respond to it, and whether and how long it will be until it is overturned.

Closer to home, I had to make a quick decision whether to put the opinion into the 2nd edition of my computer crime law casebook, which is at the printers right now. I ended up deciding not to include it, as I think the odds favor it being overturned within a year or two. I figured it was better to include the opinion in a supplement in the meantime rather than include it in the main book, as you can easily take a case out of a supplement but not the book itself.

But exactly how the case was going to be overturned is another matter. The most remarkable parts of the opinion are just lists of new rules, announced without any apparent authority or even a case or controversy. We don’t yet know if DOJ plans to file a cert petition in the case, although the procedural posture is tricky: DOJ could try to challenge some other aspect of the case and get that part scrapped in the process, but it’s hard to mount a direct challenge to what seems to be dicta. The main alternative for DOJ would be to let this case stand, let the system struggle with it for a few months or a year until there is a clear split, and then take the case to the Supreme Court. But that’s not a great option, as it means an intervening period when no one knows what the rules are for obtaining and executing search warrants for digital evidence.

In light of those somewhat awkward possibilities, I was intrigued to learn that the Ninth Circuit entered an order yesterday addressed to the parties in the case asking them to brief whether the case should be reheard by the full en banc court:

KOZINSKI, Chief Judge:
By November 25, 2009, the parties shall file simultaneous briefs addressing whether this case should be reheard en banc by the full court.

Now, wait, you’re wondering, wasn’t the case already heard by the full court? No, it wasn’t: The Ninth Circuit has so many active judges that its en banc panels consist of only about a third of its active judges. As Wikipedia explains:

In other circuits, en banc courts are composed of all active circuit judges, plus (depending on the rules of the particular court) any senior judges who took part in the original panel decision. By contrast, in the Ninth Circuit it is impractical for twenty-eight or more judges to take part in a single oral argument and deliberate on a decision en masse. The court thus provides for a “limited en banc” review of a randomly-selected 11 judge panel. This means that en banc reviews may not actually reflect the views of the majority of the court, and indeed may not include any of the three judges involved in the decision being reviewed in the first place.

But the Ninth Circuit’s rules provide for an en banc from the en banc — a super banc? — of all of the judges. As Judge Kozinski explained in 2003 testimony:

In the unlikely event that six judges might command a majority of an 11-judge en banc court and express a view inconsistent with the views of the other 21 active judges on the court, the circuit rules provide for review by the full court upon the request of any judge. This has never happened since the limited en banc rule was adopted by the Court in 1980.

Will Comprehensive Drug Testing be the first such case? On purely selfish grounds, a small part of me hopes not: As a public law scholar, you want your field to be red hot, and the initial en banc decision here is so way “out there” that it would help bring the field to the frontburner if it stays on the books. But from a less selfish perspective, it’s hard to think of a better case to take to the full court. The en banc decision dropped a bomb on the entire computer forensics world, without any briefing or even notice, and most of its rules are hard to square with relevant Supreme Court doctrine and/or the Federal Rules of Criminal Procedure. Plus, it’s difficult to figure out what the new rules really mean in practice, as they are written in such vague language that it’s hard to know what to make of it. The opinion has the agents, prosecutors, and magistrate judges all scratching their heads trying to figure out what to do. So I would think this is a very appropriate case to take super-en-banc. Stay tuned.

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