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In a ruling on the BALCO steroids-in-sports case, the Ninth Circuit U.S. Court of Appeals found Wednesday that the government has a right to hold onto seized medical records even if search warrants didn’t specifically target them. The ruling drew a strong dissent warning that the Fourth Amendment was in jeopardy if the government is given such broad rights to search electronic files. The majority found that federal agents had not violated the Fourth Amendment rights of scores of Major League Baseball players when they seized medical records from a drug testing company’s computer in 2004. The agents’ warrants had only named 10 players. Judge Diarmuid O’Scannlain’s majority opinion directs a magistrate judge to review the seized electronic files to determine which the government was entitled to view in its continuing investigation of illegal steroid distribution to athletes. “The government’s decision to copy the entire [computer] directory represented a conscientious effort to seek out all the evidence covered by the search warrant,” O’Scannlain wrote. The 120-page opinion overturns decisions by U.S. District Judges Florence-Marie Cooper in Los Angeles, Susan Illston in San Francisco and James Mahan in Las Vegas. O’Scannlain, who was joined by Richard Tallman, said the agents had not acted out of “bad faith or callous disregard” when they determined that “certain intermingled files needed to be reviewed” in addition to the ones they had specifically sought. Dissenting Judge Sidney Thomas castigated the majority ruling for throwing the Fourth Amendment’s guarantee of reasonable search and seizure to the wind. “The scope of the majority’s new holding in the digital age could not be greater,” Thomas wrote. “It removes confidential electronic records from the protection of the Fourth Amendment.” Thomas said the government’s claim that the extra files it seized were akin to suspicious items in plain view during a search “clearly has no application to intermingled private electronic data.” The majority judges’ ruling made good sense to Santa Clara County Deputy District Attorney James Sibley, who routinely deals with seized electronic data in his role as head of the DA’s office’s high-tech crime unit. If investigators had to go through every seized electronic database to exclude certain people’s files, they would run a risk of destroying evidence about their suspects, such as “metadata,” or information about who wrote or changed a document. Sibley likened it to this scenario: “To say that you can seize a fingerprint or a blood drop, but you can’t take photographs of the area it was found in, that eliminates a lot of the evidentiary value,” he said. “It’s very naive to think you can edit out bytes of data and keep the others,” Sibley said. “Preserving the integrity of evidence is every bit as important to the defense as it is to the prosecution.” Investigators seized computer files containing the 2003 test results during raids in 2004 on three labs involved in the MLB testing program. The unidentified samples had been collected as part of a MLB survey to gauge the prevalence of steroid use. Baseball players and owners agreed in their 2002 labor contract that the results would be confidential. Michael Weiner, general counsel for the players’ association, declined to immediately comment, wanting first to review the decision. The government’s investigation of the Bay Area Laboratory Co-Operative, the Burlingame supplements lab at the center of the steroid scandal, already has resulted in guilty pleas from BALCO President Victor Conte, Barry Bonds’ personal trainer Greg Anderson, BALCO Vice President James Valente, chemist Patrick Arnold and track coach Remi Korchemny. It’s not likely Wednesday’s Ninth Circuit’s decision, United States v. Comprehensive Drug Testing Inc., 05-10067, represents the end of the story as far as the seized computer records are concerned, said Hastings College of the Law professor Rory Little. “That’s a two-to-one opinion,” he said. “The politics of the two versus the one are starkly differentiated. Almost certainly there’ll be an en banc vote in this case.” The Associated Press contributed to this report.

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