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.