DOJ Files Brief Supporting Super-En-Banc in CDT

Yesterday the Justice Department filed its Brief in Support of Rehearing En Banc By the Full Court in United States v. Comprehensive Drug Testing, the blockbuster computer search and seizure case I have blogged a lot about. From the introduction:

The en banc panel’s decision announced sweeping new rules for warrants to search computers that are having an immediate and detrimental effect on law enforcement efforts. In some districts, computer searches have ground to a complete halt, and, throughout the Circuit, investigations have been delayed or impeded. Magistrate judges are uniformly viewing compliance with the newly announced rules as mandatory, but they are implementing those rules in vastly different ways. All of this was unnecessary. The parties in these cases disagree about the proper resolution of the issues presented for decision, but they agree on one fundamental point: The new rules that the en banc panel announced for the issuance and execution of warrants to search computers were unnecessary to the issues presented in these cases.

The en banc panel stepped outside the proper role of an Article III court when it set forth detailed protocols that purport to bind, and that are being understood as binding, magistrate and district judges in future cases. The seminal issues surrounding computer searches should be resolved in actual controversies—not through “guidance” that “magistrate judges must be vigilant in observing.” Op. 11891-11892. On the merits, the detailed protocols announced by the en banc panel conflict with Supreme Court decisions interpreting the Fourth Amendment and the scope of a federal court’s supervisory power. If fully implemented, they also would conflict with amendments to the Federal Rules of Criminal Procedure that are scheduled to go into effect within days.

The United States is mindful that this Court has never granted full court en banc. Indeed, the federal government has never asked the Court to do so. But the broad issues unnecessarily addressed in the en banc panel’s opinion are of surpassing importance and compel that extraordinary action. The full Court should enter an order that vacates the Court’s judgment in these cases and withdraws the en banc panel’s decision. The full Court should then either issue a new opinion limited to the issues properly before it or, at a minimum, allow the parties to brief the appropriateness of the sweeping new protocols announced by the en banc panel.

A few quick thoughts:

1) I don’t think I have ever seen a brief signed by the SG, Deputy SG, AAG, DAAG, and all of the United States Attorneys in a Circuit. If you’re presently a DOJ official and your name isn’t on the brief, you are probably feeling left out.

2) I thought the brief was excellent on the whole, although, as you might guess given my previous writing, I was not entirely persuaded by the harms of eliminating plain view for digital evidence. For example, in the case mentioned on pages 6-7 involving the men who had filmed themselves raping a child, the warrant could just be drafted broadly enough to include any images of child pornography and any evidence of unlawful child sex offenses. That way, evidence of other victims would be included within the scope of the warrant and there would be no need to rely on “plain view.” But that’s a quibble; I thought the brief was well done.

3) Given that all the parties to the case agree that the “guidance” sections were unnecessary, the sensible course would be for the Ninth Circuit to amend the opinion and take the “guidance” sections out. That is, keep the sections that were briefed and responded to the case, and take out the stuff with all the prospective rules beyond this case. Do that and everybody goes home happy, without the time and effort of going super-en-banc or the prospect of Supreme Court reversal. That seems like the sensible course to me, at least.