{"id":4655,"date":"2011-01-11T16:10:29","date_gmt":"2010-09-14T00:40:30","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2010-09-14T00:40:30","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=4655","title":{"rendered":"CA9 denies rehearing en banc in CDT"},"content":{"rendered":"

The Ninth Circuit in United States v. Comprehensive Drug Testing, Inc.<\/a>, 621 F.3d 1162 (9th Cir. 2010), denied rehearing en banc and revised its opinion without the entire court of 24 acting. No further petitions for rehearing will be allowed. (Prior en banc opinion<\/a> 579 F.3d 989 (9th Cir. 2009), posted here<\/a>.)<\/p>\n

Concluding Thoughts<\/center><\/p>\n

This case well illustrates both the challenges faced by modern law enforcement in retrieving information it needs to pursue and prosecute wrongdoers, and the threat to the privacy of innocent parties from a vigorous criminal investigation. At the time of Tamura<\/a>, most individuals and enterprises kept records in their file cabinets or similar physical facilities. <\/p>\n

Today, the same kind of data is usually stored electronically, often far from the premises. Electronic storage facilities intermingle data, making them difficult to retrieve without a thorough understanding of the filing and classification systems used\u2014something that can often only be determined by closely analyzing the data in a controlled environment. Tamura involved a few dozen boxes and was considered a broad seizure; but even inexpensive electronic storage media today can store the equivalent of millions of pages of information. Wrongdoers and their collaborators have obvious incentives to make data difficult to find, but parties involved in lawful activities may also encrypt or compress data for entirely legitimate reasons: protection of privacy, preservation of privileged communications, warding off industrial espionage or preventing general mischief such as identity theft.<\/p>\n

Law enforcement today thus has a far more difficult, exacting and sensitive task in pursuing evidence of criminal activities than even in the relatively recent past. The legitimate need to scoop up large quantities of data, and sift through it carefully for concealed or disguised pieces of evidence, is one we\u2019ve often recognized. See, e.g., United States v. Hill, 459 F.3d 966 (9th Cir. 2006). <\/p>\n

This pressing need of law enforcement for broad authorization to examine electronic records, so persuasively demonstrated in the introduction to the original warrant in this case, see pp. 13944-45 supra, creates a serious risk that every warrant for electronic information will become, in effect, a general warrant, rendering the Fourth Amendment irrelevant. The problem can be stated very simply: There is no way to be sure exactly what an electronic file contains without somehow examining its contents\u2014either by opening it and looking, using specialized forensic software, keyword searching or some other such technique. But electronic files are generally found on media that also contain thousands or millions of other files among which the sought-after data may be stored or concealed. By necessity, government efforts to locate particular files will require examining a great many other files to exclude the possibility that the sought-after data are concealed there.<\/p>\n

. . .<\/p>\n

The advent of fast, cheap networking has made it possible to store information at remote third-party locations, where it is intermingled with that of other users. For example, many people no longer keep their email primarily on their personal computer, and instead use a web-based email provider, which stores their messages along with billions of messages from and to millions of other people. Similar services exist for photographs, slide shows, computer code and many other types of data. As a result, people now have personal data that are stored with that of innumerable strangers. Seizure of, for example, Google\u2019s email servers to look for a few incriminating messages could jeopardize the privacy of millions. <\/p>\n

It\u2019s no answer to suggest, as did the majority of the three-judge panel, that people can avoid these hazards by not storing their data electronically. To begin with, the choice about how information is stored is often made by someone other than the individuals whose privacy would be invaded by the search. Most people have no idea whether their doctor, lawyer or accountant maintains records in paper or electronic format, whether they are stored on the premises or on a server farm in Rancho Cucamonga, whether they are commingled with those of many other professionals or kept entirely separate. Here, for example, the Tracey Directory contained a huge number of drug testing records, not only of the ten players for whom the government had probable cause but hundreds of other professional baseball players, thirteen other sports organizations, three unrelated sporting competitions, and a nonsports business entity\u2014thousands of files in all, reflecting the test results of an unknown number of people, most having no relationship to professional baseball except that they had the bad luck of having their test results stored on the same computer as the baseball players. <\/p>\n

Second, there are very important benefits to storing data electronically. Being able to back up the data and avoid the loss by fire, flood or earthquake is one of them. Ease of access from remote locations while traveling is another. The ability to swiftly share the data among professionals, such as sending MRIs for examination by a cancer specialist half-way around the world, can mean the difference between death and a full recovery. Electronic storage and transmission of data is no longer a peculiarity or a luxury of the very rich; it\u2019s a way of life. Government intrusions into large private databases thus have the potential to expose exceedingly sensitive information about countless individuals not implicated in any criminal activity, who might not even know that the information about them has been seized and thus can do nothing to protect their privacy.<\/p>\n

It is not surprising, then, that all three of the district judges below were severely troubled by the government\u2019s conduct in this case. …<\/p>\n

. . .<\/p>\n

This guidance can be summed up as follows:<\/p>\n

1.<\/strong> Magistrate judges should insist that the government waive reliance upon the plain view doctrine in digital evidence cases. Pp. 13962-63 supra; see maj. op. at 13949-50.<\/p>\n

2.<\/strong> Segregation and redaction of electronic data must be done either by specialized personnel or an independent third party. Pp. 13964-65 supra; see maj. op. at 13945-48, 13950-52. If the segregation is to be done by government computer personnel, the government must agree in the warrant application that the computer personnel will not disclose to the investigators any information other than that which is the target of the warrant.<\/p>\n

3. <\/strong>Warrants and subpoenas must disclose the actual risks of destruction of information as well as prior efforts to seize that information in other judicial fora. Pp. 13963-64 supra; see maj. op. at 13944-45, 13957-58. <\/p>\n

4.<\/strong> The government\u2019s search protocol must be designed to uncover only the information for which it has probable cause, and only that information may be examined by the case agents. Pp. 13964-65 supra; see maj. op. at 13950-52.<\/p>\n

5.<\/strong> The government must destroy or, if the recipient may lawfully possess it, return non-responsive data, keeping the issuing magistrate informed about when it has done so and what it has kept. P. 13965 supra; see maj. op. at 13952-56. <\/p>\n

* * *<\/center><\/p>\n

This guidance is hardly revolutionary. It\u2019s essentially Tamura<\/a>\u2019s solution to the problem of necessary over-seizing of evidence. Just as Tamura<\/a> has served as a guidepost for decades, the procedures outlined above should prove a useful tool for the future. Nothing any appellate court could say, however, would substitute for the sound judgment that magistrate judges must and, I am confident will, exercise in striking this delicate balance.\n<\/p><\/blockquote>\n

I suspect a cert petition, but it’s not a given that it would be granted.<\/p>\n

See Law.com<\/a>:<\/p>\n

The 9th U.S. Circuit Court of Appeals today backtracked from a sweeping set of data privacy guidelines issued last year in connection with the federal investigation of steroids in baseball. The guidelines in Chief Judge Alex Kozinski’s majority opinion a year ago are now relegated to a nonbinding concurring opinion.<\/p>\n

The guidelines in the original en banc opinion were aimed at protecting traditional Fourth Amendment rights in the age of electronic data, and had the apparent support of seven other judges. <\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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