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United States: Federal Appeals Court Sets Limits on Government Access to Private Electronic Records

(Sept. 18, 2009) In a ruling issued August 26, 2009, a federal appeals court addressed the matter of procedures federal courts should observe in issuing search warrants and subpoenas for electronically stored information, holding that the “plain view” exception to the rule that only evidence covered by a search warrant may be seized is inapplicable to digital information.

The matter arose out of the federal government's investigation of steroid use by Major League Baseball (MLB) players. Under a collective bargaining agreement entered into by the players' union, all MLB players were tested for banned substances for one year, with the assurance that results would remain anonymous and confidential. The government obtained evidence indicating steroid use by ten particular players, and based on this probable cause, obtained subpoenas in three federal districts to obtain computer records and other evidence from the two companies in charge of testing hundreds of MLB players. Because of the difficulty of segregating the computer evidence relating to the ten suspected players, the government gathered material on all of the MLB players. The players' union sought judicial relief in the three districts to preserve the players' confidentiality. All three district courts ruled in the players' favor, ordering the property returned or subpoenas quashed, except with respect to evidence relating to the ten suspected players. The government appealed from these orders. While initially a divided panel of the U.S. Court of Appeals for the Ninth Circuit ruled in the government's favor as to two of the three orders, the Ninth Circuit granted the players' union's motion to rehear the matter en banc.

The Ninth Circuit en banc panel, in an opinion by Chief Judge Alex Kozinski, ruled that the three district courts correctly ordered the government to return the property, except with respect to the ten players for which there was probable cause. The court rejected the government's argument that it was permissible to retain electronic records on players not suspected of wrongdoing because the evidence was in “plain view” during the course of the investigation of the ten suspects. The Ninth Circuit said that in an era of networked computers, applying the plain view doctrine with respect to digital information could potentially eviscerate citizens' privacy rights under the Fourth Amendment. The court said that in cases involving search warrants for computer records, magistrates should require the government to waive reliance on the plain view doctrine and require that segregation and redaction be done by an independent third party or by specialized government personnel who will pledge not to disclose information to the investigators other than that targeted by the warrant. (United States v. Comprehensive Drug Testing, Inc., No. 05-55354 (9th Cir. Aug. 26, 2009), available at