On Wednesday, the Ninth Circuit released a new decision regarding the limits of the plain view doctrine when searching electronic data.
The facts behind United States v. Comprehensive Drug Testing, Inc. [PDF] are fairly straightforward: government agents, seeking to verify the identities of ten major league baseball players who had reportedly tested positive for steroid use, subpoenaed the records of the drug testing company to obtain all “drug testing records and specimens” pertaining to major league baseball. When the testing company and the player’s union sought to quash the subpoena, the government obtained a warrant limited to records of the ten players for whom the government had probable cause. Upon seizing the test company’s electronic records, the government examined the records of those ten players — and hundreds of other records that were “in plain sight” on the computer media taken pursuant to the warrant. The government then used this information to seek more warrants and to issue additional subpoenas.
A district court judge ordered the government to return the property seized pursuant to the original warrant. Another district court judge ordered the government to return all the property seized based on the subsequent warrant, with the exception of the material relating to the originally-named ten players. Yet another district court judge quashed the subpoenas based on results from the original search. The government appealed all three decisions.
Portions of the Ninth Circuit decision turn on the timing of the lower court decisions and the government’s appeals, as well as the interplay of various federal rules of criminal procedure that have little or no application to military justice actions. The intriguing parts of the decision come later, when the court concluded the government’s assertion of plain view was overbroad: “The government agents were obviously counting on the search to bring constitutionally protected data into the plain view of the investigating agents … This was an obvious case of deliberate overreaching by the government in an effort to seize data as to which it lacked probable cause.”
To avoid such overreach in the future, the court went on, “the warrant application should normally include, or the issuing judicial officer should insert, a protocol for preventing agents involved in the investigation from examining or retaining any data other than that for which probable cause is shown.” The court concluded that the separation of “seizable data (as defined by the warrant) from all other data” should be conducted by government employees or third parties “not involved in the investigation,” lest “every warrant for electronic information  become, in effect, a general warrant, rendering the Fourth Amendment irrelevant.”
The court set forth the following guidelines: magistrates should insist the government waive the plain view doctrine “in digital evidence cases”; segregation and redaction of data must essentially be done behind a Chinese wall, shielded from view of the investigators; the government must use search protocols designed to uncover only information for which there is probable cause, and only that information can be reviewed by the case agents; and the government must destroy or return non-responsive data and inform the magistrate what was returned and what was kept. In addition, the government must disclose actual risks of destruction of the data, as well as prior efforts to seize that data … a requirement plainly intended to keep the government from forum-shopping, as it apparently did here, with impunity.
For those who disagree with the scope of the ruling, this case will be a poster-child for the adage that “bad facts make bad law” — the government’s conduct here appears to have been just a little too cute for the court to stomach. Whether that’s true or not, as the circuit court for Silicon Valley, the Ninth Circuit’s impact on legal issues relating to computers can be pervasive, and this decision promises to be no exception.