Ninth Circuit relaxes electronic search procedures in United States v. Comprehensive Drug Testing rehearing

In a revised en banc opinion (PDF), the Ninth Circuit overturned guidelines promulgated last year involving seizure of computer records from a company allegedly providing steroids to professional baseball players. The en banc opinion relaxes the previously issued federal procedures governing issuance and execution of search warrants and subpoenas for electronically stored information. Federal prosecutors, many of whom were being denied “any new warrants to search computers” under these stringent standards (as alleged in a brief in support of rehearing en banc (PDF)), will benefit from the relaxed guidelines. However, some privacy advocates (including the Electronic Frontier Foundation and the Electronic Privacy Information Center) worry the relaxed standard for electronic search, which now includes only unbinding privacy protections, will significantly lessen computer users’ Fourth Amendment rights against unreasonable searches of their data.

This case involves a 2002 federal investigation into the Bay Area Lab Cooperative (“Balco”). The federal government suspected Balco of supplying professional baseball players with steroids. A collective bargaining agreement between the Major League Baseball Players Association (“MLBPA”) and Major League Baseball (“MLB”) subjected players to suspicionless, but strictly anonymous and confidential, drug testing for banned substances over the course of one year. Comprehensive Drug Testing, Inc. (“CDT”), an independent business , administered the program and maintained lists of the results. Quest Lab Diagnostics, Inc. (“Quest”) performed the actual testing. In the course of the Balco investigation, federal authorities learned of ten players who tested positive. The government first secured a subpoena in the Northern District of California for all “drug testing records and specimens” pertaining to MLP players in CDT’s databases (CDT and MLB moved to quash the subpoena; the government issued new subpoenas in response). The government also obtained a warrant, in the Central District of California, which was more limited in scope than the subpoena. This warrant was limited to the ten players about whom the government had probable cause regarding their illegal drug use. However, in executing the warrant, the government “seized and promptly reviewed the drug testing records for hundreds of players in Major League Baseball (and a many other people).” The government obtained this information by seizing a directory of testing data called the Tracey directory. Finally, the government also obtained a warrant, from the District of Nevada, for the urine samples in Quest’s drug-testing facilities.

In 2008, the Ninth Circuit determined whether the government’s seizure of evidence from CDT as well as its separately filed subpoenas were admissible evidence in an ongoing grand jury investigation into illegal drugs provided to professional baseball players by Balco. See United States v. Comprehensive Drug Testing, Inc., 513 F.3d 1085 (9th Cir. 2008). The court cited United States v. Tamura, 694 F.2d 591 (9th Cir. 1982) as relevant precedent, recalling in that case that “the Fourth Amendment barred the conversion of a specific warrant into a general one.” However, in United States v. Adjani, 452 F.3d 1140 (9th Cir. 2006), the court held that in this specific case involving applying warrants for “intermingled documents in the computer context,” “restricting the search to an email program or to specific search terms, would likely have to cast a sufficiently wide net to capture the evidence sought.” Id. at 1150. Finally, in United States v. Hill, 459 F.3d 966 (9th Cir. 2006), the court, applying Tamura, concluded that, though “specific protocol for seizures of electronic data” was not “mandatory,” a “ ‘warrant[] authorizing blanket removal of all computer storage media for later examination,’ must be premised upon an ‘affidavit giving a reasonable explanation . . . why a wholesale seizure is necessary’” (citing Tamura). Looking to this precedent, the Ninth Circuit held that the search of the Tracey directory was valid under the Fourth Amendment for three reasons: (1) “the government submitted detailed affidavits describing the anticipated difficulties of sorting computer data on-site” and “proposed a protocol to guide and to limit the seizures of intermingled evidence,” (2) the government “compiled with the protocol in the warrant,” and (3) the government did not seize CDT’s hardware (which the warrant allowed) and instead only “copied several intermingled documents, including the Tracey directory.” CDT appealed this decision for an en banc hearing, which was granted.

The first en banc decision, 579 F.3d 989 (9th Cir. 2009), overturned the earlier Ninth Circuit ruling and held that only evidence regarding the ten originally suspected players was admissible. The majority 2009 en banc opinion outlined strict procedural rules that bound magistrate courts. Judge Kozinski, joined by Judges Callahan and Bea, issued the opinion which held the following. In the interest of balancing legitimate government interests and individuals’ right to privacy under the Fourth Amendment, the government (1) “should . . . forswear reliance on the plain view doctrine or any similar doctrine that would allow it to retain data to which it has gained access only because it was required to segregate seizable from non-seizable data”; (2) “must . . . fairly disclose the actual degree of . . . risks [of concealment and destruction of evidence]”; (3) must design “the process of sorting, segregating, decoding and otherwise separating seizable data (as defined by the warrant) from all other data . . . to achieve that purpose and that purpose only.” Furthermore, (4) “the warrant application should normally include . . . a protocol for preventing agents involved in the investigation from examining or retaining any data other than that for which probable cause is shown.” Finally, (5) “[o]nce the data has been segregated (and, if necessary, redacted), the government agents involved in the investigation may examine only the information covered by the terms of the warrant” and “any remaining copies must be destroyed” or “returned along with the actual physical medium that may have been seized (such as a hard drive or computer).” The 2009 en banc opinion concluded:

“[I]t is useful . . . to update Tamura to apply to the daunting realities of electronic searches which will nearly always present the kind of situation that Tamura believed would be rare and exceptional—the inability of government agents to segregate seizable from non- seizable materials at the scene of the search, and thus the necessity to seize far more than is actually authorized.”

Federal prosecutors and the Obama administration contested that these procedural requirements were too stringent.  In a brief in support of a rehearing super en banc by the full Ninth Circuit, then-Solicitor General Elena Kagan argued that the Ninth Circuit’s strict guidelines produced a “chill[ing]” effect on the ability of prosecutors to obtain new search warrants for computers and other electronic data and records.

Following these requests from Solicitor General Kagan and others on behalf of the Obama Administration, the Ninth Circuit conceded to revisit the opinion en banc, but denied the super en banc request. In its current and final ruling on this case, the Ninth Circuit retains its earlier holding dismissing all evidence other than that requested in the original warrant. The per curiam opinion, written by Judge Kozinski and joined by Kleinfeld, W. Fletcher, Paez, and M. Smith, contains (mostly) the same language as the earlier en banc majority opinion. However, the revised en banc decision now, instead of “updat[ing] Tamura to apply to the daunting realities of electronic searches which will nearly always present the kind of situation that Tamura believed would be rare,” merely “adopt[s] Tamura’s solution to the problem of necessary over-seizing of evidence.” In practical effect, this revised en banc opinion no longer makes Kozinski’s five-part procedural requirements binding for magistrate courts. Instead, magistrate are required only to use these five procedural safeguards as “a useful tool for the future.” The Ninth Circuit concludes this matter, by stating, “[i]n the end . . . we must rely on the good sense and vigilance of our magistrate judges, who are in the front line of preserving the constitutional freedoms of our citizens while assisting the government in its legitimate efforts to prosecute criminal activity.”