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27Aug/09

Search & Seizure: 9th Cir. Appeals calls “foul” on broad computer searches

When searching a spreadsheet containing the drug test results of 104 professional baseball players federal prosecutors went too far, says the 9th U.S. Circuit Court of Appeals.

After lawfully executing a warrant on a Long Beach, CA drug testing lab for the test results of 10 players, agents uncovered a Microsoft Excel spreadsheet with results of every player that was tested in the program. The government argued that 94 of those results were in "plain sight".

In a 9-2 decision, the court ruled:

"The government should, in future warrant applications, forswear reliance on the plain view doctrine or any similar doctrine that would allow it to retain data to which it has gained access only because it was required to segregate seizable from non-seizable data. If the government doesn’t consent to such a waiver, the magistrate judge should order that the seizable and non-seizable data be separated by an independent third party under the supervision of the court, or deny the warrant altogether."

Citing US v. Hill, 322 F. Supp. 2d 1081 (C.D. Cal. 2004), Chief Judge Alex Kozinski, writing for the majority states the objective 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 of office file systems and computer databases. If the government can’t be sure whether data may be concealed, compressed, erased or booby-trapped without carefully examining the contents of every file...then everything the government chooses to seize will, under this theory, automatically come into plain view. Since the government agents ultimately decide how much to actually take, this will create a powerful incentive for them to seize more rather than less: Why stop at the list of all baseball players when you can seize the entire Tracey Directory? Why just that directory and not the entire hard drive? Why just this computer and not the one in the next room and the next room after that? Can’t find the computer? Seize the Zip disks under the bed in the room where the computer once might have been."

Four players whose names also appeared in the seized spreadsheet were leaked to The New York Times. Alex Rodriguez, David Ortiz, Manny Ramirez and Sammie Sosa were not included in the search warrant, but Kozinski added, "those players suffered harm as a result of the government's seizure."

The decision crafts Miranda-style guidelines for prosecutors and judges to protect Fourth Amendment privacy rights while conducting computer searches.

I have participated in testimony to a similar effect, whereby courts have ruled that spouses cannot provide consent to search an entire hard drive when directories are clearly controlled by one individual. Likewise, I have been asked by the court, on many occasions to parse data applicable to a search warrant from a mountain of otherwise inadmissible data.

Although this decision only addresses computer hard drives, it clearly has long-reaching implications. After all, nearly every electronic device has become, or will become, computerized to some extent.

While the US government is considering its next move, I expect this may be a sign of things to come.

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About Jeff M. Fischbach

http://www.twitter.com/FischTech Jeff Michael Fischbach is founder and President of SecondWave Information Systems (SecondWave.com), a consulting firm specializing in Forensic Technology. Since 1994, he has served as a board member and technology adviser to numerous professional organizations and corporations. Mr. Fischbach has been engaged as a litigation consultant and Forensic Examiner, offering expert advice and oversight on matters involving intellectual property, computers, information systems, satellite, tracking and wireless communications technologies. He has advised law enforcement, foreign government representatives, judges, lawyers and the press.
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