Swinging for the fences: how Comprehensive Drug Testing, Inc. missed the ball on digital searches.

• Author: Angermeier, Vincent

1. INTRODUCTION

   As digital technology has become ubiquitous and inexpensive, more and more criminals leave digital trails. However, those trails commonly lead through large databases, filled with data unrelated to any crime and bearing a high expectation of privacy. This poses a serious challenge to investigators attempting to retrieve the relevant data using a minimum amount of time and with the respect for the privacy of those searched that the Constitution requires. Because digital records are fungible and easily disguised or hidden, these searches sometimes require a file-by-file search of seized databases, forcing increased expenditures on conducting the search and increased privacy intrusions. This has challenged trial and appellate courts to develop a practical approach to preserving civil rights against unreasonable searches and unparticularized searches.

   A recent en banc Ninth Circuit decision, United States v. Comprehensive Drug Testing, Inc., attempted to do just that, adopting a series of procedural requirements for digital searches in criminal cases that appear to provide strong protections for digital privacy at the cost of placing a significant burden on the ability of law enforcement to pursue digital crimes. (1) This Comment will argue that, although digital searches raise valid Fourth Amendment concerns, the Ninth Circuit's approach is excessive and inefficient, and that a more flexible approach, based on the balancing of government interests, privacy interests, and the probability of a successful search, is preferable. Part II will review the facts and procedural history of Comprehensive Drug Testing, Inc. Part III will briefly revisit the history of the plain view doctrine and evaluate its applicability to digital searches. Part IV will discuss the variety of approaches proposed by other courts and scholars. Finally, Part V will argue that the most efficient approach to regulating digital searches is one where courts balance privacy interests with society's interests in detecting crime and encourage investigators to offer search methods that are respectful of privacy interests as well as reasonably efficient and effective. Ultimately, this Comment concludes that the Comprehensive Drug Testing, Inc. holding fails to strike a proper balance and is as a result impractical and inefficient.

2. THE BALCO INVESTIGATION AND COMPREHENSIVE DRUG TESTING, INC.

   In August 2002, the Internal Revenue Service's Criminal Investigations Unit began a grand jury investigation into the Bay Area Lab Cooperative (BALCO). (2) BALCO was a small lab which had several high-profile athletes as clients, including Barry Bonds, a Major League Baseball player who hit a record seventy-three home runs during the 2001 season. (3) Federal investigators suspected that BALCO had provided Bonds and other athletes with performance-enhancing drugs. (4) They soon confronted the owner of BALCO, Victor Conte, who confessed to having developed and distributed two performance-enhancing drugs, known as "The Clear" and "The Cream." (5) The investigation expanded its focus to the athletes who had been using those chemicals. A grand jury convened in September 2003 and began subpoenaing athletes with connections to BALCO. (6)

   In November 2002, the Government served a grand jury subpoena on Major League Baseball (MLB), seeking drug testing information for ten players. (7) It also subpoenaed the records of the ten players from two drug testing companies retained by MLB to carry out its drug testing policies: Comprehensive Drug Testing, Inc. (CDT) and Quest Diagnostic Labs (Quest). (8) The Major League Baseball Players Association (Players Association) filed a motion to quash the subpoenas in the Northern District of California. (9)

   While the Northern District considered that motion, the Government requested a search warrant from magistrate judges in the Central District of California and the District of Nevada. (10) The warrants authorized the seizure of drug test records and specimens for the ten BALCO-connected players, as well as materials explaining CDT's procedure for administering the MLB drug-testing program, including correspondence and e-mails. (11) The Government executed the warrant at CDT, where it obtained records listing the players that CDT had tested along with the identifying numbers CDT used to label their documents and information. (12) A CDT director also provided the agents with a physical document that contained testing results for the ten BALCO players. (13) When another director informed the agents that the digital records of CDT's drug testing programs were maintained on a computer directory called the "Tracy" directory, an agent created a digital copy of the directory for analysis off-site. (14)

   1. DISTRICT COURT

      The Players Association filed a motion under Federal Rule of Criminal Procedure 41(g) in the Central District of California, asking for the return of the electronic records not related to the BALCO players. (15) The motion was granted by Judge Cooper, who rejected the Government's argument that the electronic documents seized were legally seized as plain view contraband and therefore not subject to a 41 (g) motion. (16) The Players Association filed a similar order in the District of Nevada (where Quest is located), which was granted by Judge Mahan. (17) In granting the motion, Judge Mahan found that "[t]he government callously disregarded the affected players' constitutional rights" and had not followed the Ninth Circuit's procedural guidelines for searches of intermingled records laid out in United States v. Tamura. (18) He also found that the Government had misled the magistrate judge in obtaining the warrant by claiming that the records were in danger of being destroyed. (19)

   2. COMPREHENSIVE DRUG TESTING INC. I

      The Government appealed the orders of Judges Cooper and Mahon and the appeals were consolidated and heard by a Ninth Circuit panel. (20) The panel reversed the lower court orders. (21) The majority opinion held that the district court had improperly granted the 41(g) motions. It noted that the judges' orders, which required the return of all CDT and Quest records, were inconsistent with precedent. (22) It further noted that courts typically deny 41(g) motions in situations where "the government's need for the property as evidence continues" even though some unlawfully obtained evidence may be intermingled. (23) The panel also held that the Tamura procedures were "pragmatic" rather than constitutional in nature and thus not required. (24) The majority declined to decide whether or not the "plain view" exception to the warrant requirement was applicable, noting that the documents seized by the Government had been within the scope of their warrant. (25)

   3. COMPREHENSIVE DRUG TESTING, INC. II

      The case was reheard en banc by the Ninth Circuit where, writing for the majority, Chief Judge Kozinski reversed the decision of the three-judge panel. (26) The opinion reviewed the Government's actions in the context of its previous decision, United Stales v. Tamura. (27) That case stemmed from a government kickback investigation into a manager (Tamura) at an American company. (28) The Government obtained a search warrant to seize particular records at the company. (29) The necessary records were intermingled with non-pertinent records and required a multi-step process to identify and segregate. (30) In order to avoid several days of searching for documents on-site, the Government decided to seize all of the corporation's records for the relevant time periods. (31) The search ultimately supplied evidence relevant to the investigation. (32) Tamura sought to suppress the evidence after the Government failed to return segregated non-pertinent files to the corporation. (33) The court held that the Government's "wholesale seizure" of documents not specified in the warrant constituted an "investigatory dragnet" prohibited by the Fourth Amendment. (34) The decision endorsed an approach described by the American Law Institute's Model Code for Pre-Arraignment Procedure, which states that once police seize intermingled documents, they are to be held under seal and cannot be searched until a neutral magistrate conducts a hearing on the least intrusive method for searching the files. (35)

      The Comprehensive Drug Testing, Inc. en banc panel noted that the point of the Tamura procedures was to "maintain the privacy of materials that are intermingled with seizable materials, and to avoid turning a limited search for particular information into a general search." (36) It found that the Government's decision to conduct a search of the entire hard drive with the discretion to exercise plain view was incompatible with this purpose. (37) Based on this observation and other issues related to the Government's failure to appeal in a timely manner, the Ninth Circuit affirmed the district court orders. (38) In addition, in a section titled "Concluding Thoughts," it laid out several holdings describing a set of procedures that magistrate judges and government investigators must "be vigilant in observing" when searching intermingled electronic data.

      1. Magistrates should insist that the government waive reliance upon the plain view doctrine in digital evidence cases.

      2. Segregation and redaction must either be done by specialized personnel or an independent third party.... If the segregation is to be done by government computer personnel, it must agree in the warrant application that the computer personnel will not disclose to the investigators any information other than that which is the target of the warrant.

      3. Warrants and subpoenas must disclose the actual risks of destruction of information as well as prior efforts to seize that information in other judicial fora.

      4. The government's search protocol must be designed to uncover only the information for which it has probable cause and only that information may be examined by...