The Volokh Conspiracy - An Analysis of <i>United States v. Comprehensive Drug Testing</i>:

On December 18th, the en banc 9th Circuit will hear oral argument on an important case involving how the Fourth Amendment applies to the search and seizure of computers. You can read the revised panel decision here, and download the petition for rehearing here (5.2mb). I've written a lot about these issues and I worked extensively on them back was at the Justice Department in 1998-2001. Given my writing and past work in the area, I wanted to blog some thoughts about the case.

I. The Facts

  The facts of the case are quite complicated, but here at the basics. The government has been investigating steroid use in baseball, and it obtained warrants for computers owned by the third party company, Comprehensive Drug Testing, that ran the steroid tests. The warrant sought the records of 10 specific players, combined with any "[a]ll manuals, pamphlets, booklets, contracts, agreements and any other materials detailing or explaining" the "administration of Major League Baseball's drug testing program."

  During the execution of the warrant, much of the day was spent in negotiation between the government and CDT as to exactly where the information was located and how it could be copied. The government ended up not taking any equipment, but it did copy a directory of files, called the Tracey directory, that contained a lot of records beyond the mere 10 specific players sought in the warrant. There is some dispute among the parties (and the judges in the panel opinion) as to why the government copied the entire directory rather than stay onsite and only copy the records of the 10 players. Although the facts are kind of unclear on this, it looks like the government ended up looking through the Tracey directory for evidence within the scope of the warrant, and then discovered lots of stuff involving other players' steroid use and sought to expand the investigation on that basis.

  In this case, CDT and the Major League Players' Association have challenged the search warrants and the expanded investigation, arguing on behalf of the other players' interests. Rather than waiting for charges to be filed, which would then lead to a motion to suppress, the groups are trying to assert the Fourth Amendment rights of the unindicted players outside the scope of the initial 10 players using the procedural vehicle of a Rule 41 motion for the return of property unlawfully seized. The question is, should the motion be granted and the investigation preemptively stopped in its tracks? Or should the government be allowed to proceed?

II. Introduction to the Two Big Issues

  This case is particularly interesting because it ends up at the intersection of two distinct problems that I used to deal with a lot when I worked at the Justice Department. As I noted in an earlier article on computer warrants, computer warrants are usually executed in two stages: the physical search stage and the electronic search stage. First, the government goes and takes the files away (the physical stage), and second, the governments searches through the files obtained for the evidence sought by the warrant (the electronic stage). This raises two distinct problems in cases like CDT. At the physical stage, the problem is how to minimize the intrusiveness of the on-site search at operating third-party business. At the electronic stage, the problem is how to minimize the intrusiveness of the off-site search.

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	[Orin Kerr, December 9, 2008 at 2:23am] Trackbacks An Analysis of United States v. Comprehensive Drug Testing: On December 18th, the en banc 9th Circuit will hear oral argument on an important case involving how the Fourth Amendment applies to the search and seizure of computers. You can read the revised panel decision here, and download the petition for rehearing here (5.2mb). I've written a lot about these issues and I worked extensively on them back was at the Justice Department in 1998-2001. Given my writing and past work in the area, I wanted to blog some thoughts about the case. I. The Facts The facts of the case are quite complicated, but here at the basics. The government has been investigating steroid use in baseball, and it obtained warrants for computers owned by the third party company, Comprehensive Drug Testing, that ran the steroid tests. The warrant sought the records of 10 specific players, combined with any "[a]ll manuals, pamphlets, booklets, contracts, agreements and any other materials detailing or explaining" the "administration of Major League Baseball's drug testing program." During the execution of the warrant, much of the day was spent in negotiation between the government and CDT as to exactly where the information was located and how it could be copied. The government ended up not taking any equipment, but it did copy a directory of files, called the Tracey directory, that contained a lot of records beyond the mere 10 specific players sought in the warrant. There is some dispute among the parties (and the judges in the panel opinion) as to why the government copied the entire directory rather than stay onsite and only copy the records of the 10 players. Although the facts are kind of unclear on this, it looks like the government ended up looking through the Tracey directory for evidence within the scope of the warrant, and then discovered lots of stuff involving other players' steroid use and sought to expand the investigation on that basis. In this case, CDT and the Major League Players' Association have challenged the search warrants and the expanded investigation, arguing on behalf of the other players' interests. Rather than waiting for charges to be filed, which would then lead to a motion to suppress, the groups are trying to assert the Fourth Amendment rights of the unindicted players outside the scope of the initial 10 players using the procedural vehicle of a Rule 41 motion for the return of property unlawfully seized. The question is, should the motion be granted and the investigation preemptively stopped in its tracks? Or should the government be allowed to proceed? II. Introduction to the Two Big Issues This case is particularly interesting because it ends up at the intersection of two distinct problems that I used to deal with a lot when I worked at the Justice Department. As I noted in an earlier article on computer warrants, computer warrants are usually executed in two stages: the physical search stage and the electronic search stage. First, the government goes and takes the files away (the physical stage), and second, the governments searches through the files obtained for the evidence sought by the warrant (the electronic stage). This raises two distinct problems in cases like CDT. At the physical stage, the problem is how to minimize the intrusiveness of the on-site search at operating third-party business. At the electronic stage, the problem is how to minimize the intrusiveness of the off-site search. To read the rest of this post, click here. (a) Minimizing at the First Stage The problem at the first stage is this: How should the government execute warrants for electronic information held by third party businesses? For those with a long memory, this is the Steve Jackson Games problem: The government may have probable cause to execute a warrant seeking digital evidence, but actually finding that evidencer is usually incredibly hard The government could just go in and take all the third party servers and search them offsite, as it usually does when executing a warrant for computers at a home. But that's a huge disruption of the legitimate third party's interests: ideally, the government needs to both minimize the interference with the third party business and yet also get the information it is entitled to get in the warrant. Plus, from a practical standpoint, if the third party doesn't like how the warrant is executed, the third party is likely to raise a stink and may sue under statutes like the Privacy Protection Act — as the government learned in Steve Jackson Games. In a perfect world, the third party would always work with the government and would do most of the work for it. That greatly minimizes the interference with the third party's interests. But that's just the perfect world: The real works is usually messier, especially outside the ISP setting, and there are no easy answers. The information can be anywhere, and the government doesn't know who exactly it can trust. The third party might be helpful, but then it might be untrustworthy or might not fully appreciate the government's rights to execute the warrant. What to do in light of the uncertainty? Back when I was at DOJ, we ended up advising agents and AUSAs to do their best to work with third parties and to try to minimize the interference with the third party's interests — with the caveat that there was really no way to know how to optimize the problem. The Fourth Amendment didn't really place any limitations on these processes if the government had a valid warrant, but we were pretty worried about the prospects of civil suits under the Privacy Protection Act after the district court opinion in Steve Jackson Games. So we essentially advised agents to try to "play nice" to avoid problems. (b) Minimizing at the Second Stage The problem with the second stage is the needle in a haystack problem. The government now has the computer or file offsite, and the warrant authorizes the search for the evidence in it. But how to execute the warrant, given that computer searches are so invasive given that so much information is always mixed together? How can you ensure that searches remain narrow given the need to search for the needle in the haystack? There are two basic approaches: Ex ante approaches, which would place judge-approved limits on how the search can occur beforehand, and ex post approaches, which would review the government's conduct and exclude that which violates the law after the search occurs. I wrote a law review article on this issue in which I conclude that review must be ex post, not ex ante. Ex ante review just doesn't work because no one has any idea of what kind of ex ante restrictions are appropriate in any particular setting. Judges are not computer forensic experts, and even the world's greatest computer forensic experts can't predict with certainty how the analysis of a computer will unfold. I argue in the article that ex post restrictions are the only serious option, but they really require a tightening of the plain view exception (and ultimately, its end) to be effective. Rather than remaking that argument here, I'll just refer the reader to the article and the relevevant section: Searching and Seizing Computers in a Digital World, 119 Harv. L. Rev. 531, 565-84 (2005). III. How Should the Ninth Circuit Resolve This Case? Okay, so enough set-up: What should the Ninth Circuit do? My own view is that the government should win at this stage on procedural grounds. The court is adjudicating a motion to return property under Rule 41, which is a motion for a return of property that was unlawfully seized. The general idea behind such motions is that if the government has seized property outside the scope of a warrant, you can sue to get the property back. But here CDT and the players' association are trying to convert Rule 41 motions into a very different sort of relief: They want the Ninth Circuit to treat a Rule 41 motion as a sort of preemptive motion to suppress, creating a sort of ex-ante use restriction on what the government learns from the search. It's a very strange idea, sort of a preemptive suppression rule on steroids (so to speak). As far as I can recall, I have never seen anything like it. What makes this unusual procedural move extra strange is that we don't even know who the people are whose rights are being vindicated. As I understand it, the objections to the search are being brought by the drug testing company and the player's association on behalf of other players who may have violated the law but who were not targeted by the initial warrant. No one actually knows who these people are, as I understand it. If this issue arose in the context of a motion to suppress, only the actual persons whose Fourth Amendment rights were at issue could file such a motion. They would challenge the exact search that led to the discovery of the evidence against them, and there would be a hearing as to the exact facts. But here the challenge to the warrant is being brought as a sort of universal standing challenge: The idea is that the challengers want the courts to craft a remedy that will protect everyone who might have a Fourth Amendment right in the information, whoever that might be. I'll hand it to the lawyers for CDT and the Players' Association: They're great attorneys, and they're being very aggressive in trying to get these issues litigated at this stage long before most courts would even look at these questions. But I think the Ninth Circuit should decline to use Rule 41 in this newfangled way. The challengers here are asking for a level of judicial involvement in the search warrant process that you don't normally see, all at a very early stage before judges normally get involved, all in an area with very uncertain facts and rapidly changing technology. I would follow the Sixth Circuit's lead in the en banc Warshak opinion and decline to jettison the traditional procedural limits on judicial rulings about such matters. If the Ninth Circuit judges conclude that they are comfortable with this case procedurally, then the question is how to deal with the two different stages of the searches. In my view, the restrictions here shouldn't come at the physical stage. I worked on a lot of these cases when I was at DOJ, and the execution of the warrant that led to the "Tracey" file is about as narrow as searches get. When I was at DOJ, our focus was on avoiding the seizure of physical stuff: We didn't want to take the servers away, in light of Steve Jackson Games. A search at a business in which the main item copied was a folder of only a few thousand files would have been considered a remarkable privacy success. Indeed, if the government had only drafted its initial warrant differently, it would have avoided this problem altogether: A search for evidence of illegal steroids in major league baseball -- rather than of the ten players -- would have been upheld under Ninth Circuit precedent as sufficiently particular, and it would have made the other evidence in the "Tracey" file within the scope of the warrant. More broadly, most computer searches are much broader and more invasive in scope than the warrant in this case. Consider that it is routine practice (allowed widely by the courts) to take personal computers at a home and copy all the hard drives. Given that a typical computer might have an 80GB hard drive, a warrant at a business that led to the copying of the Tracey file is a remarkably small amount of information. The government had a valid warrant: Although the fact that it was executed at a third party raises special concerns, the valid warrant gives the government the flexibility needed to execute the warrant with only deferential review. See Dalia v. United States, 441 U.S. 238 (1979); Zurcher v. Stanford Daily, 436 U.S. 547 (1978). That brings us to the second stage of things, the electronic search. Let's assume that the Ninith Circuit holds that it was a seizure to copy the file; that the file retained a reasonable expectation of privacy; that looking through the copy therefore was a separate search. (These aren't obvious steps, incidentally, but the Ninth Circuit would need to reach them to get to the second stage.) How should the Ninth Circuit limit the scope of the second stage? In my view, ex ante restrictions — what has generally been known as the Tamura approach — is the wrong way to go. First, I don't think it actually works, as I have argued elsewhere. It ends up just being a formality, stock language that ends up having no real force, because no one can predict how the search will need to unfold. Further, the U.S. Supreme Court has made pretty clear as a matter of doctrine that warrants regulate what the government may search for and what it may seize, but not the "precise manner" in which they are executed. As the Court put it in Dalia v. United States, 441 U.S. 238 (1979): Nothing in the language of the Constitution or in this Court's decisions interpreting that language suggests that, in addition to the three requirements discussed above, search warrants also must include a specification of the precise manner in which they are to be executed. On the contrary, it is generally left to the discretion of the executing officers to determine the details of how best to proceed with the performance of a search authorized by warrant — subject, of course, to the general Fourth Amendment protection "against unreasonable searches and seizures." That general protection is generally measured ex post in a motion to suppress, not ex ante in some sort of procedures to be followed to execute the warrant. The Ninth Circuit could try to work its way around that, but the last time that was tried the Supreme Court caught on and reversed them. See United States v. Grubbs, 547 U.S. 90 (2006) (overturning ex ante Ninth Circuit rules on the execution of anticipatory warrants). So that brings us finally to the plain view exception. As I argued in my Harvard article, I think that's the rule that should change: Plain view needs to be narrowed, and in my view, may ultimately need to be abandoned in digital searches altogether. The plain view exception is based on an understanding of the role of the particularity requirement that is inaccurate for digital searches: The particularity requirement imposes much less of a limitation in the digital search context, and I think ultimately the most serious way to restore the role of the particularity requirement in digital evidence cases is to limit or abolish plain view; otherwise the exception swallows the rule. (Read the article for more.) Interestingly, Judge Thomas in his dissenting panel opinion makes a somewhat similar argument at 1192-93. If the Ninth Circuit holds that the plain view exception doesn't apply in digital evidence cases, however, that would create a pretty clear circuit split with the 10th Circuit and its 1999 Carey decision. If that happens, it may be that the Ninth Circuit isn't the last word in the case. IV. Postscript Anyway, that's my basic take on the case. There are a lot of other issues raised by it that received considerable attention in initial panel opinions, but this post can't go on forever. A final thought is that Congress could sensibly regulate this sort of problem with a rule targeted just for searches involving medical records. One of the things that sensibly gets folks worked up about this case is that they involve medical data: Whether or not you have Fourth Amendment rights in medical records (this is actually an interesting question — try squaring Skinner v. Railway Labor Exec. Assoc. with the third party doctrine cases like United States v. Miller), certainly there are extremely strong privacy interests there. Congress could avoid some of the difficulties here by expanding on the Privacy Protection Act, 42 U.S.C. 2000aa, to have special rules for searches involving medical records. For example, perhaps a special master could be required as a matter of statutory law. While special masters have tended to be a poor solution to computer searches and seizures generally — they take years, for example — perhaps thay would be a good idea for medical privacy cases. It's hard to impose that as a Fourth Amendment rule, but it would be sensible policy for Congress. Related Posts (on one page): What Happens When Comprehensive Drug Testing Meets the New Rule 41?: An Interesting Consequence of United States v. Comprehensive Drug Testing: How the Ninth Circuit Tried To End Plain View for Computer Searches Without Ending Plain View for Computer Searches: Do Magistrate Judges Have a Power to Refuse To Sign Warrants Based on Expectations of How a Warrant Would be Executed?: Ninth Circuit Enacts Miranda-Like Code for Computer Search and Seizure: Ninth Circuit Hands Down En Banc Decision in United States v. Comprehensive Drug Testing: Oral Argument in United States v. Comprehensive Drug Testing: An Analysis of United States v. Comprehensive Drug Testing: