A recent ruling by the U. S. Ninth Circuit Court of Appeals brings together federal agents, computer data files, Major League Baseball players, and steroids in a fascinating defense of privacy against unreasonable government searches. Though the court's decision is tailored only to federal law enforcement, it does provide a glimpse of rules that state and local police may be subject to in the future.
In brief, the Ninth Circuit Court's decision in United States v. Comprehensive Drug Testing, Inc. (U.S. v. CDT) says this: (1) a warrant to search through a computer database does not grant federal agents the authority to open all files in that database; (2) federal judges in the Ninth Circuit District granting future search warrants of this type must require federal agents to waive the "plain view" rule as it applies to electronic records; (3) personnel who are not law enforcement agents must review the files in the seized database and then pass along to federal agents information related to the scope of the search warrant.
At this point, only federal warrants in the district covered by the court's decision (Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington) must abide by these rules.
Here's the background: in 2003, federal agents obtained computer data as part of an investigation into the use of performance enhancing drugs by Major League Baseball players. Federal agents were searching for information on ten players in particular, but during their review of the computer files they came across evidence that incriminated other people as well.
The government argued that this additional evidence was obtained legally because of a long-standing rule that law enforcement personnel executing a search warrant (for example, for a weapon, drugs, or legal documents) may also seize evidence outside the scope of the warrant if that evidence is in "plain view." In U.S. v CDT, federal agents had a search warrant to find information on Comprehensive Drug Testing computers pertaining to ten particular professional baseball players.
During the course of opening and closing numerous computer data files, the agents found information on athletes not named in the warrant. The government argued that this was simply finding evidence in plain view during a properly conducted search, albeit one that involved electronic rather than physical evidence. When electronic records are seized and reviewed, they said, it isn't possible to know in advance which files will contain the sought after information. Therefore, each file must be opened and examined. Thus their assertion that everything is in "plain view."
The appellate court, though, didn't buy that reasoning and delivered the opinion summarized above. They based this decision on the contention that a search of electronic data is fundamentally different than the search of a physical location, such as an office or a house. Deliberately opening computer files and finding an incriminating document is different than walking into a room and seeing drugs or a weapon. Moreover, as databases grow ever larger and more comprehensive, allowing agents to search every file of the databases seized would potentially give them access to a massive amount of information not at all related to the scope of the warrant. Consider the implications, the court mused, of a warrant for information contained in Google email files? Where would the line be drawn separating the files that could be opened and those that could not?
Though this case deals with a federal action involving professional athletes and steroids, it's easy to see the implications for just about any criminal case. Police might believe that records relating to stolen property are contained on a suspect's computers at home and work, as well as databases on servers at the suspect's employer. Should they be allowed to open all the data files since it's not apparent from the files' names what the contents are? And what happens with smart phones, which are just small but powerful computers? Can the police search through the contents of a suspect's iPhone?
This is an important Fourth Amendment issue worth watching. At some point the Supreme Court will have to weigh in to provide people a clear delineation of their rights related to electronic data.
U.S. v. Comprehensive Drug Testing, Inc., U.S. Ninth Circuit Court of Appeals
"Courts Wrestle with Searches when the Evidence is Digital," Wall Street Journal, September 24, 2009
