One good thing seems to have come from Alex Kozinski’s trial by fire after an unhappy litigant obtained computer files that the judge wrongly believed were electronically protected and leaked them to the Los Angeles Times.
In a paean to the 4th Amendment for the Digital Age, the Chief Judge of the 9th U.S. Circuit Court of Appeals has blasted the government’s search of electronic records and authored sweeping standards for the conduct of such searches in the future. http://www.ca9.uscourts.gov/datastore/opinions/2009/08/26/05-10067eb.pdf
The case, U.S. v. Comprehensive Drug Testing, stems from the steroids scandal in Major League Baseball and searches conducted by federal agents looking for evidence of player abuse. The searches seized vast amounts of information about people far beyond 10 baseball players who were under investigation.
The government began investing BALCO (the Bay Area Lab Cooperative) in 2002 because of suspicions it was providing steroids to pro baseballers. That year, Major League Baseball entered a union agreement with its players requiring them to submit to suspicionless drug testing. The results were to remain anonymous and confidential. A company named Comprehensive Drug Testing administered the program, while Quest Diagnostics performed the tests.
While investigating Balco, the government learned of 10 players who had tested positive by CDT. So it got a grand jury subpoena seeking ALL drug testing records and specimens pertaining to Major League Baseball held by CDT. When the government went to CDT, agents accessed a vast database, known as the Tracey Directory, which contained on Microsoft Excel spreadsheet the entire list of baseball players who had tested positive for steroids.
As Kozinski observed, the Tracey Directory contained not just drug testing records for the 10 players targeted by the government, but also those of hundreds of other pro baseball players, 13 other sports organizations, three unrelated sporting competitions and many others. In noting the harm that can come from such overreaching, Kozinski cites news articles of doping allegations against Manny Ramirez, David Ortiz, Sammy Sosa and Alex Rodriguez.
“When, as here, the government comes into possession of evidence by circumventing or willfully disregarding limitations in a search warrant, it must not be allowed to benefit from its own wrongdoing by retaining the wrongfully obtained evidence or any fruits thereof,” Kozinski wrote, in an en banc decision that overturned a prior panel decision. http://www.law.com/jsp/article.jsp?id=1202433381364
The decision also has significant impact on the plain view aspect of digital discovery. That element, in particular, provoked dissent and claims of overreaching, including from Judge Carlos Bea, who found the sweeping rulemaking of Kozinski & the majority to be “against the grain of the common law method of reasoned decisionmaking,” … finding it “particularly troublesome in a rapidly developing area of law such as this one, as computer search capabilities improve exponentially by the month.”
The dissenters managed to mention pornography a couple times. Kozinski’s trashy trove was primarily sophomoric sexual images as well as downloaded music.