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Baseball and the search for electronic records.

It is not often that I have a chance to write about baseball in this column, or about steroid use. However, a recent court decision involving baseball and steroids may end up being a landmark decision limiting the right of the government to seize electronic data records. And that is definitely worth writing about.

Since 2002, the government has been investigating the Bay Area Lab Co-Operative (BALCO) for its involvement in the use of illegal steroids, particularly among athletes. About the same time, Major League Baseball (MLB) and the Major League Baseball Players Association (MLBPA) entered into an agreement to provide drug testing for steroids. The testing was done by Comprehensive Drug Testing (CDT), an independent testing company, and the results were only supposed to be shared with the MLB and MLBPA.

BALCO Search Warrants

As part of its BALCO investigation, the government obtained search warrants for CDT's records, specifically focusing on 10 individuals who had allegedly been connected to BALCO. However, since the records were in the form of computer files, the government actually obtained the records for hundreds of ballplayers and other athletes and individuals because these records were intermingled with those of the 10 specific individuals.

After the records were seized, MLB, the MLBPA, and CDT went back to court to force the government to return the records that were seized. In late August, the federal 9th Circuit Court of Appeals ruled that the government had misused its authority to seize records properly under the search warrants and ordered the records returned. More importantly, the court issued strong new guidelines on the seizure of electronic records and data files.

The Fourth Amendment

The Fourth Amendment gives citizens the right to be "secure in their persons, houses, papers and effects against unreasonable searches and seizures." As its enforcement mechanism, the amendment also notes that search warrants may only be issued "upon probable cause," and that they must "particularly describ(e) the place to be searched and the persons or things to be seized."

The legitimate challenge for the government in the case of computer records is that "particular" records can often be difficult to identify on a computer drive containing hundreds or thousands of records. In addition, records are often encrypted, password-protected, or mislabeled (perhaps deliberately) to provide increased security or to avoid detection. Finally, records may also be stored remotely, where they may be commingled with the records of hundreds, thousands, or hundreds of thousands of other people.

Previous court decisions have held that the government could physically or electronically seize computers, servers, hard drives, backup tapes, or other devices, if the devices have records that the government is seeking. This is permitted to secure the information and allow the government the opportunity to analyze the computer or drive forensically and obtain the information it seeks.

In Plain View

However, it is not uncommon for other information to be accessed in the process of looking for particular records. In the BALCO case, the government invoked a legal concept known as "plain view" to seize additional records showing positive steroid tests by other ballplayers. The plain view doctrine provides that a police officer or government investigator may seize any evidence of criminality that is in the officer's "plain view." Typical examples include seeing a gun lying on the back seat of a car or seeing marijuana plants in a facility through a window.

In the case of these records, the government took the position that in the process of forensically examining the contents of the CDT electronic records (essentially looking at every individual file), additional files containing information about steroid use came into its "plain view." The government then seized those records as well.

New Standards

As the 9th Circuit soundly rejected the government's position, it outlined several new standards that apply to search warrants for electronic files.

First, the government must waive the plain view doctrine in order to obtain a warrant. Second, the forensic analysis must be done by specialized computer personnel or an independent third party. The case investigators are not permitted to participate in the analysis; likewise, they are not allowed to see any "non-responsive" information obtained during the analysis. Both of these conditions limit the ability of government investigators to obtain and use information that is not "particular" to the search warrant.

In the BALCO case, the government outlined the legitimate challenges and risks of loss of computer information, such as mislabeling and encryption. However, because MLB, the MLBPA, and CDT were not subjects of the investigation, there was little actual risk of information loss in this particular case. The 9th Circuit now requires warrant and subpoena applications to disclose the actual risk of information loss due to these actions. The court can't merely say that there is a "possible" risk.

Jumping From Court to Court

The government must also disclose all previous efforts (including those in other jurisdictions) to obtain the information to avoid the government jumping from court to court to try different angles in order to get the response it wants. Finally, the court ordered that the government must destroy or return any data that was nonresponsive or not covered by the search warrant.

The impact of this ruling may be slow in being fully implemented. Because of jurisdictional rules, the court's ruling is only binding on federal courts in western states. It is not binding on federal courts outside the 9th Circuit or on state courts. One commentator suggested that the 9th Circuit was issuing these guidelines in its capacity as the "supervisor" to the lower courts and not issuing them because the Fourth Amendment required them, which could weaken their impact. However, other commentators have argued that this decision may be persuasive on other courts dealing with warrant requests for electronic records.

To the Supreme Court?

The government has until late November to decide whether to appeal the decision to the U.S. Supreme Court. If the Supreme Court takes the case and agrees with the decision of the 9th Circuit, it would prove a firm, national standard for addressing government warrants for electronic records.

George H. Pike is director of the Barco

Law Library and assistant professor of

law at the University of Pittsburgh School

of Law. His email address is gpike@pitt.edu.

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Title Annotation:Legal Issues
Author:Pike, George H.
Publication:Information Today
Article Type:Column
Date:Nov 1, 2009
Words:1057
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