This is just to give readers a note of the fascinating computer search decision released by the Ninth Circuit on August 26th.
The decision is called Comprehensive Drug Testing. It is about the execution of search warrants in support of a United States government investigation in to steroid use in professional baseball. The warrants authorized the seizure of records relating to ten players to whom the government had probable cause to believe had tested positive in a drug testing program agreed to by the baseball league and its players association. Though the authorization was for specific records relating to ten players, the government seized a directory that contained records relating to all players who had tested positive in the program, reviewed the entire directory and then served subpoenas demanding production of the broader set of records that it had just seized.
Chief Judge Kozinski questioned whether the government’s asserted need to take the whole directory was bona fide, but in any event held that the government breached the Fourth Amendment by its manner of dealing with the directory. Specifically, he held the government acted unlawfully by not following a protocol that isolated the records it had authorization to seize before conducting a review. He then articulated the following five guidelines for the search and seizure of electronically stored information, necessary because co-mingling and other concerns will often make broad seizure and off-site search a necessity.
1. Magistrates should insist that the government waive reliance upon the plain view doctrine in digital evidence cases.
2. Segregation and redaction must be either done by specialized personnel or an independent third party. 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.
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.
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.
This is reminiscent of the civil search protocol articulated by the Supreme Court of Canada in Celanese, but I am not aware of a Canadian criminal law equivalent. Anyone?