Yesterday, the Ninth Circuit issued an unfortunate revised opinion in United States v. Comprehensive Drug Testing Inc., a case featuring blatantly unconstitutional government action. As the court put it:

“This case is about a federal investigation into steroid use by professional baseball players. More generally, however, it’s about the procedures and safeguards that federal courts must observe in issuing and administering search warrants and subpoenas for electronically stored information.”

One shocking example: the government seized and reviewed the drug testing records for hundreds of players in Major League Baseball—and many other people—even though the judicially authorized warrant was limited to the records of the ten players for whom the government had probable cause.

The Ninth Circuit had in its earlier en banc decision [579 F.3d 989 (9th Cir. 2009)] set forth guidelines meant to ensure that even otherwise lawful warrants authorizing the search and seizure of computers do not give officers too much access to private data that might be intermingled with evidence of a crime: (1) the government must waive the “plain view” rule, meaning it must agree to only use evidence of the crime or crimes that led to obtaining the warrant, and not to use evidence of other crimes; (2) the government must wall off the forensic experts who search the hard drive from the agents investigating the case; (3) the government must explain the "actual risks of destruction of information" they would face if they weren't allowed to seize entire computers; (4) the government must use a search protocol to designate what information they can give to the investigating agents; and (5) the government must destroy or return non-responsive data.

The government, however, challenged these guidelines by seeking “super” en banc rehearing by the full Ninth Circuit (in the Ninth Circuit, ordinary en banc review is done by a panel of 11 judges).

Sadly, while yesterday’s decision reached the same, correct result in this case and denied super en banc rehearing, the revised majority opinion now omits the privacy-protective guidelines. Instead, those guidelines are now part of a 5-judge concurrence and are not binding on magistrate judges issuing warrants.

We're disappointed. True, the Ninth Circuit recognized that government agents have “a powerful incentive . . . to seize more rather than less” (the opinion archly characterizes the government’s view as “Let’s take everything back to the lab, have a good look around and see what we might stumble upon.”). And eliminating the guidelines might avoid Supreme Court review.

Still, if the Ninth Circuit wanted “to avoid turning a limited search for particular information into a general search of office file systems and computer databases,” it would have been far better off with its original, binding rules.

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