Public Defense

The Fourth Amendment takes the red pill

By Gideon

And down the rabbit hole we go, with United States v. Comprehensive Drug Testing (aka the MLB steroid case). The decision brings fourth amendment and technology into version 2.0, otherwise called the digital age by essentially doing away with the plain view exception. This was issued a few days ago, but I’ve held off on posting about it mainly so I can get a sense of what the dense decision is all about. Instead, I just found myself reading the insightful posts and comments at Volokh, so that’s where I’ll direct you as well, after providing Judge Kozinski’s distillation of the holding:

When the government wishes to obtain a warrant to examine a computer hard drive or electronic storage medium in searching for certain incriminating files, or when a search for evidence could result in the seizure of a computer, see, e.g., United States v. Giberson, 527 F.3d 882 (9th Cir. 2008), magistrate judges must be vigilant in observing the guidance we have set out throughout our opinion, which can be summed up as follows:
1. Magistrates should insist that the government waive reliance upon the plain view doctrine in digital evidence cases. See p. 11876 supra.
2. Segregation and redaction must be either done by specialized personnel or an independent third party. See pp. 11880-81 supra. 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. See pp. 11877-78, 11886-87 supra.
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 the case agents. See pp. 11878, 11880-81 supra.
5. The government must destroy or, if the recipient may lawfully possess it, return non-responsive data, keeping the issuing magistrate informed about when it has done so and what it has kept. See p. 11881-82 supra.

Here is the entire chain of posts and I’d make sure to read the comments too. And for those of you who didn’t get the title of this post, here’s the video. The 9th Circuit is Morpheus, the Fourth Amendment is Neo and US v. CDT is the red pill. Or something like that.

Full post as published by A Public Defender on August 28, 2009 (boomark / email).