Bytes, BALCO, and Barry Bonds: an exploration of the law concerning the search and seizure of computer files and an analysis of the Ninth Circuit's decision in United States v. Comprehensive Drug Testing, Inc.

AuthorRegensburger, Derek
  1. INTRODUCTION

    "What happened to the Fourth Amendment? Was it repealed somehow?" (1) Those are the chilling words of U.S. District Judge James Mahan, echoed by Ninth Circuit Judge Sidney Thomas in his dissent in United States v. Comprehensive Drug Testing, Inc. ("CDT"). (2) The questions are in reference to federal agents' seizure and subsequent search of confidential medical records in relation to their investigation of the illegal distribution of steroids by the Bay Area Laboratory Cooperative ("BALCO"). (3) The agents had issued subpoenas to and then executed search warrants on two independent testing labs to obtain the steroid testing records of ten Major League Baseball ("MLB") players who had connections to their investigation of BALCO. (4) The Ninth Circuit upheld the agents' seizure and subsequent search of computer files, which contained steroid drug testing results not only for the ten targets of the federal investigation, but countless other athletes inside and outside of baseball. (5)

    Because of its connection to steroids and the government's investigation into BALCO and San Francisco Giants' slugger Barry Bonds, the decision received nationwide attention. Bonds's name is inextricably tied to the BALCO investigation, having been linked to BALCO and steroid use in a recent New York Times bestseller. (6) Bonds was recently indicted on perjury and obstruction of justice charges that stemmed from allegedly false statements he made to the federal grand jury investigating illegal steroid distribution at BALCO. (7) It has even been speculated that one of the motivations behind the government's initial investigation of BALCO was a personal vendetta that the government's lead investigator, Jeff Novitsky, had against Bonds. (8)

    Apart from its notoriety, the CDT decision is important in several respects. First, it attempts to define the parameters and limitations involved in computer searches, particularly with respect to the seizure and subsequent search of intermingled files. (9) The CDT court held that government agents can seize entire collections of computer data for off-site review where files within the scope of the search warrant are intermingled with irrelevant data on the computer's hard drive. (10) It also permitted the government to browse the contents of computer files to determine if they are within the scope of the warrant, without having to limit such a search to key words or file type. (11) This part of the ruling recognizes the inherent need for flexibility in conducting computer searches.

    Second, the decision is also notable for what it does not do--give adequate protection to the privacy concerns of innocent third parties whose records are caught up in the government's dragnet. The case raises a fascinating question: What privacy concerns are implicated when the government obtains confidential medical records from a disinterested third party and what steps have to be taken to ensure that such concerns are not violated? The majority opinion seems to give short shrift to privacy rights, giving the government virtual carte blanche to search intermingled data that it seizes. This power is subject to post-seizure review by a magistrate, but this review is only after a proper objection has been filed by an aggrieved party. (12) In other words, the government is free to search the seized data until such objection is made. Thus, the ruling affords somewhat uncertain status to the prospect of effective judicial oversight, as there is no mechanism for providing notice to aggrieved third parties that their heretofore confidential records have been seized by the government. (13)

    In addition, given the myriad issues present in the case, the decision may serve as the perfect vehicle for the United States Supreme Court (should it be given the opportunity to review the case) to lay out a consistent, uniform set of guidelines for the government to follow in conducting computer searches--something that is sorely lacking in the current jurisprudence on this issue. (14) As will be discussed in Part II of this Article, the rules for conducting computer searches vary dramatically from circuit to circuit. If the decision is reversed, at least in part, then in the ultimate irony of ironies, the Supreme Court will have chastised the Ninth Circuit for having been too conservative when it comes to protecting the liberties and freedoms of individuals.

    If nothing else, the CDT decision highlights the need for courts to adopt a more uniform approach to computer searches. The case pitted the two extremes of the current debate against one another. The majority took the position that computer searches require nothing more than an extension of the traditional rules governing searches of documentary evidence to the digital realm. (15) Conversely, Judge Thomas argued in a boisterous dissent that computer searches require something more. He advocated for magistrate review of intermingled computer files before government investigators could inspect them, and argued that strict limits be placed on the government's ability to subsequently search that data. (16)

    This Article attempts to clarify the existing law on computer searches and lays out a framework for how such searches should be approached in the future. Part II of this Article examines the current state of the law regarding computer searches and explores the two contrasting approaches to the problem. Next, it addresses what protections are currently available with respect to maintaining the privacy and confidentiality of medical and legal records which are seized in an investigation. It also examines how, and under what circumstances, an aggrieved party may seek return of seized property. Part III provides an in-depth analysis of and commentary on the CDT decision. Part IV discusses how courts view the plain view doctrine's operation in the digital search realm and addresses whether the doctrine should apply at all in this context. Finally, in Part V, this Article provides some recommendations as to how current search and seizure principles should be applied to govern computer searches in the future.

  2. DISCUSSION OF APPLICABLE FOURTH AMENDMENT PROVISIONS TO COMPUTER SEARCHES AND SEIZURES

    The current state of the law surrounding computer searches is a bit like parenting. There are lots of ideas as to how it should occur but no clear agreement as to the right answer. Some courts have attempted to analogize computers to closed containers or file cabinets in an attempt to meld computer searches into existing Fourth Amendment jurisprudence. (17) Other courts have held that computers require a "special approach" to the question and have imposed new restrictions on such searches which are not present in areas outside this context. (18) Such legal gymnastics are unwarranted. To borrow a phrase from Todd Bertuzzi, a computer "is what it is." (19) Rather than simply being akin to a container or file cabinet, a computer is much more. It is anything and everything a user wants it to be--a file cabinet containing thousands of personal files or business records, a personal accountant, a photo album, a music or movie player, a virtual desk complete with calendar and Rolodex, a research librarian, or a video game machine. In effect, the search of a computer is in some ways no different today than a search of a house or an office desk used to be; it just can be accomplished in one-stop shopping.

    Most computer searches occur using a standard protocol. First, the computer is examined to see if it is in proper working order or has any physical damage. (20) Next, the hard drive is removed, inspected, and connected to a forensic computer for examination. (21) A write-blocking device is installed between the suspect drive and the forensic computer to prevent the examiner from accidentally writing information onto the suspect drive. (22) A bitstream copy of the hard drive is then made, including blank space. (23) The copy of the hard drive information is then analyzed by using software such as EnCase, which allows investigators to examine the contents of each file. (24)

    1. WARRANT SPECIFICITY: PARTICULARITY AND BREADTH

      In order to understand the rules governing computer searches, it is first necessary to discuss the basic principles governing execution of search warrants generally. To be reasonable under the Fourth Amendment, a warrant must be specific. (25) However, a warrant need only be specific enough to "permit the executing officer to exercise reasonable, rational and informed discretion and judgment in selecting what should be seized." (26) "Specificity has two aspects: particularity and breadth." (27)

      First, a warrant is said to be sufficiently particular if it sets forth "general classifications of the items to be seized" which would enable the executing officer to "ascertain and identify with reasonable certainty" the items that he is authorized to seize. (28) Depending upon the complexity of the crimes under investigation, the court's focus should be on whether the warrant is as particular as reasonably could be expected under the circumstances. (29) Given that the search of a hard drive or other storage media is inherently complex, some courts have found warrants to search computers meet the particularity requirement even though they may only generally describe the computer or storage media to be searched. (30) As will be further explored below, this line of decisions recognizes that it is often difficult for officers to precisely pinpoint the location of the desired evidence when it is in digital form. This is because such evidence may be contained in files on the hard drive of the computer or on various storage media such as CD-ROMs or jump drives. It may even be hidden from view entirely by encryption or other security methods. (31) Other courts have followed a different approach, instead requiring that warrants for computer searches be limited more narrowly to...

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