The Justice Department's aggressive steroids probe has led the 9th U.S. Circuit Court of Appeals to enunciate a new set of Fourth Amendment protections for the digital age.
In an en banc opinion Wednesday that split conservatives on the court, Chief Judge Alex Kozinski said federal agents were wrong to seize swaths of drug test results from labs in Nevada and California. The computer files taken by the government revealed information about far more people -- including professional baseball players and others -- than allowed by a search warrant.
The decision reverses an earlier panel upholding the search. It also represents the second high-profile drubbing that the U.S. Attorney's Office for the Northern District of California has received from the 9th Circuit in as many weeks: The appeals court just tossed former Brocade CEO Gregory Reyes' backdating conviction because of prosecutorial misconduct.
"When, as here, the government comes into possession of evidence by circumventing or willfully disregarding limitations in a search warrant," Kozinski wrote of the steroids probe, "it must not be allowed to benefit from its own wrongdoing by retaining the wrongfully obtained evidence or any fruits thereof."
The steroids case has been long litigated. Following a deal in 2002 with its players union, Major League Baseball conducted drug tests that were supposed to remain anonymous. However, federal agents investigating the use of steroids in professional sports learned the names of 10 players who had tested positive and obtained a search warrant for their drug testing records.
After obtaining an electronic spreadsheet from the drug testing lab, though, the government reviewed the records of hundreds of players and many other people.
In the years since, drug dealers, athletes and coaches have been prosecuted for perjury, and the names of other baseball players who tested positive for steroids were leaked to the media.
But Kozinski didn't limit the opinion to the steroids case, to the chagrin of some of his colleagues. Instead, the chief took on broader Fourth Amendment jurisprudence -- specifically the plain view doctrine as it relates to government searches of computer files.
Because incriminating data sought by law enforcement are often stored with thousands of other records, the government necessarily opens some of those non-relevant files in its search. The problem, Kozinski wrote, occurs when agents stumble across incriminating material outside the scope of the search warrant, and then try to legalize the discovery under the plain view exception.
That tactic renders limiting language in search warrants meaningless, Kozinski wrote. "Seizure of, for example, Google's e-mail servers to look for a few incriminating messages could jeopardize the privacy of millions," he wrote.
As a remedy, magistrate judges should force prosecutors to renounce the plain view doctrine when it comes to data searches, or require more impartial computer specialists to search the data before agents get their hands on it, he wrote.
Kozinski wasn't the only Republican appointee to back these measures: Judges Andrew Kleinfeld and Milan Smith Jr. joined the opinion as well. Judge Carlos Bea agreed with the result in the steroids case, but took issue with Kozinski's broader language on the plain view doctrine.
Meanwhile, Judges Consuelo Callahan and Sandra Ikuta -- herself a former Kozinski clerk -- dissented, calling the chief's new guidelines "prophylactic" dicta and an assault on the common law approach to jurisprudence. The two conservatives who wrote the panel opinion -- Judges Diarmuid O'Scannlain and Richard Tallman -- weren't drawn for the en banc court. (Neither was the third panelist, Judge Sidney Thomas, who had dissented.)
"Instead of tailoring its analysis of the plain view doctrine to the facts of this case, the majority takes the bold step of casting that doctrine aside," Callahan wrote. "Rather than adopting this efficient but overbroad approach, the prudent course would be to allow the contours of the plain view doctrine to develop incrementally through the normal course of fact-based case adjudication."
One former federal prosecutor thinks the Fourth Amendment guidance will have a significant impact on cases, forcing agents and prosecutors to seek broader warrants from magistrates when they come across data they didn't originally expect to find.
"Judge Kozinski did not exercise his usual judicial restraint and limit himself to this case, but frankly I think it was timely, and maybe a little overdue," said Scott Frewing, now a white-collar defense lawyer at Baker & McKenzie.
The U.S. Attorney's Office is reviewing the opinion and considering its options, a spokesman said.
Elliot Peters, the Keker & Van Nest partner who argued the case for the baseball players union, said the opinion wouldn't have had such broad import but for the government's own overreaching.
"Bad decisions by government agents and lawyers at a whole bunch of levels make for law they don't like down the road. That's kind of a rule of thumb," Peters said. "To the extent they don't like these proscriptions, they only have themselves to blame."
Also joining Kozinksi in the en banc opinion in United States v. Comprehensive Drug Testing Inc. , 09 C.D.O.S. 11022, were Judges Susan Graber, Kim Wardlaw, William Fletcher, Richard Paez and Marsha Berzon.
