August 26th, 2009 may come to be a day prosecutors and law enforcement look back on and wish had turned out a bit differently. For others it is a day which leads them to believe the Federal Courts can be fair and actually do seek justice for all.
The case centers around government investigators and prosecutors overreaching their authority and violating conditions set forth by a US Magistrate intentionally and willfully. The details of the case revolve around steroid use by Major League Baseball players and the test results held in computers by the laboratories who did the actual testing. During the course of an investigation, the government learned of 10 baseball players who had tested positive for steroid use and petitioned a US Magistrate for a search warrant to find evidence on only those ten players. What followed is arguably one of the most blatant attempts by those in law enforcement/prosecution to throw out the rules of law (in particular the 4th Amendment).
When executing the search warrant for the information on the ten baseball players, the lead investigative agent (Agent Novitsky) ignored the US Magistrate’s orders that only the forensic specialist was to separate out the data specified in the search warrant. The problem faced with this search was (and is) the fact that hundreds of individual private medical records were contained in the same computer as those of the ten baseball players listed in the warrant. Agent Novitsky was present during the execution of the warrant and in viewing the data before the ten players information was separated out saw other results which pointed to positive drug results and under the “Plain View” doctrine seized everything contained on that storage device. From this cache of “evidence”, the government subpoenaed data from two other labs citing evidence from the first seizure.
As you can imagine, the labs sued for the return of their property and in fact the government was ordered by three separate judges to return all property and evidence with the exception of the information on the original ten players. The behavior on the part of the government investigators and prosecutors was so far out of line the judges went so far as, “…to accuse the government of manipulation and misrepresentation.” The case makes for interesting reading and makes you wonder what the agents and prosecutors were thinking.
In this ruling the 9th Circuit has effectively thrown out the “Plain View” doctrine as it applies to electronic searches. Plain and simple as that. What the Court has also done is set up a framework or set of guidelines for any future seizures of electronic/digital evidence:
1. Magistrates should insist that the government waive reliance
upon the plain view doctrine in digital evidence cases.
See p. 11876 supra.
2. Segregation and redaction must be either done by specialized
personnel or an independent third party. See pp.
11880-81 supra. If the segregation is to be done by government
computer personnel, it 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.
3. 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. See pp. 11877-78, 11886-87
supra.
4. The government’s 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. See pp. 11878, 11880-81 supra.
5. 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. See p. 11881-82 supra.
These “guidelines” explicitly lay out what government agents can do during an investigation centered around digital evidence. In fact, these guidelines offer very little latitude for government agents and in fact put such clear guideposts an agent or prosecutor which ignores these will have a very hard time winning any cases if this case is used as precedent. To say that the government agents and prosecutors angered the Federal Judiciary to such a degree they have been slapped down is an understatement.
The dissenting judges in the case bring up the point that some evidence will be found during routine searches and should not be separated out just because it was not part of the original warrant. Their example was one that during a search for one type of evidence child porn is found. A valid point it is, but the point is a red herring in that this particular case is about evidence co mingled with that of many other people who have no part in this case. For example, a warrant is executed to examine the emails of one person on a Google server. The dissenting judge’s argument is that ALL emails on that server are subject to search simply because they are in “Plain View” while doing a search of the one email listed in the warrant. Those of us in the computer field know how easy it is to use filters and queries to extract only what we need or want. To say that combing through an entire storage device is required is disingenuous at best.
To further clarify the point here let’s flip the scenario around: Do regular US citizens have access to Top Secret or Secret material held by the US Government? Of course not. The US Government states unless you have a need to know then the information is off limits. Regular citizens also have this right via the 4th Amendment. Unless the government has a need to know your private information based on certain conditions set forth in the 4th Amendment, the government or its agents have no reason or authority to view your private information. There are those that will argue that if you have nothing to hide you should not fear the government looking at your private data. To those souls, I say you should lay bare your banking and credit information for all the world to see. Every time I have made that point they say, “But that is private!!” to which a light bulb shines brightly above their head.
Bravo for the 9th Circuit and let this be a lesson to overzealous investigators who are now saddled with onerous rules because some played fast and loose with the rights of US Citizens.
