Ninth Circuit Hands Down En Banc Decision in United States v. Comprehensive Drug Testing:
The new opinion, on how the Fourth Amendment applies to the search and seizure of a computer in the context of an investigation into steroids in baseball, is here. I'm reading it now and will post some thoughts as I go through it.
It seems like the case basically eviscerates the plain view doctrine in computer search and seizure cases, and that's just for starters. Pretty good win for the drug testing lab and the MLB players' union.
8.26.2009 1:18pm
Allan (mail):
Pretty good win for Americans.
8.26.2009 1:34pm
Don Miller (mail) (www):
IANAL, but I think the rules make sense. For the record, I am a network administrator for a living.

The Government blatantly admitted to and used the excuse of a search warrant to go on a fishing expedition.

The elements of their search warrant could have been produced in 10 minutes by the company providing them a printout with the names of the 10 players and their test results. There was no real belief that the testing company was going to hide or destroy the evidence. A police computer expert could have spent another 30 minutes on scene looking at the actual database tables to verify the printout accurately reflected what the database said.

The example of the Google Email Servers was a good one. Using the Government's Theory in this case, they could produce a Search Warrant to Google because they have reliable evidence that Joe Doe and Bill Smith exchanged child porn using GMail. The Government would think themselves entitled to seize all of Google's servers, backups, desktops, laptops etc. Shutting down Google's operations to the whole world. Then at their leisure, investigators could review every email message in every account under the chance that Joe and Bill somehow disguised their messages. Any emails or data found that indicated any other criminal activity would then be in plain view and they could prosecute.

Oh, also, they wouldn't be required to give Google back any other their equipment until they were darn good and ready.

Because this example is so absurd in its scope it is obvious to see the Government's flawed theory.

The Government is going to whine and complain and do everything they can to subvert these rules. But Search Warrants were never intended to be fishing expeditions.
8.26.2009 1:58pm
In the traditional rivalry, Cops v. Constitution, it sounds like the Constitution came out on top in this one. I will await Prof. Kerr's comments before chancing anything beyond a preliminary observation about this contest or its effect on the rest of the series.
8.26.2009 7:15pm
Mac (mail):
But, how can the IRS go on a fishing expedition in Switzerland with UBS? Is that not similar or am I missing something?
8.27.2009 3:54pm

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