A controversial and surprisingly overlooked judicial ruling has placed unprecedented restrictions on the federal government's ability to seize information stored on personal computers, e-mail servers, and other ubiquitous electronic devices. The decision, which the Obama administration says has halted or stymied several ongoing criminal investigations, has established new requirements for obtaining computer search warrants that even supporters of enhanced privacy protection think might be unconstitutional.
Among other things, the Appeals Court's guidelines require investigators to forgo the use of a well-established doctrine that allows them to collect information as evidence even when it is not what investigators intended to find. The case stems from a probe of steroid use by professional baseball players and the potentially damaging information that federal agents discovered when they seized a drug-testing company's computers.
In August 2008, the U.S. Court of Appeals for the 9th Circuit, which covers most Western states, found that government agents had improperly seized the test results of hundreds of ballplayers when the agents had warrants for only 10 players under investigation. The government has argued that it should be allowed to keep all of the records because they were found in the "plain view" of law enforcement officers. The records were mingled in a computer directory with those of other people whom the company had tested, including athletes from other sports and some who weren't professional athletes.
The "plain view" doctrine is a long-standing practical tool for searching physical spaces. If police officers who are searching a home for cocaine, for instance, find automatic weapons lying on a coffee table, they can seize them as evidence of illegal weapons possession. In searches of vast electronic data stores, however, which require investigators to root through various drives, directories, and folders, the rules of plain view are murky.
Three U.S. District judges, who had initially granted subpoenas and warrants for the 10 players, ordered the government to return the extraneous information. The government appealed to the 9th Circuit, and Chief Judge Alex Kozinski, in a withering opinion for the 9-2 majority, accused investigators of trampling the privacy rights and reputations of hundreds of people who had done nothing to alert the authorities' suspicion. Indeed, the baseball players had agreed to submit urine tests only after winning assurances from league officials that their results would be kept confidential and used only to determine how widespread steroid use really was.
"This was an obvious case of deliberate overreaching by the government in an effort to seize data" for which "it lacked probable cause" to think that anyone had done anything wrong, wrote Kozinski, a Reagan appointee often cited for his libertarian opinions. "The privacy and economic well-being" of the other players "could easily be impaired if the government were to release the test results swept up in the dragnet," he said.
Kozinski's opinion amounts to a concise and forceful description of the unique threats to Fourth Amendment prohibitions on unlawful searches and seizures in the Information Age. The government has long argued, as have experts in digital forensics, that criminals routinely hide incriminating records on computers by encrypting them, placing them in innocuously named files, or rigging the material to delete itself when outsiders access it. Investigators often have to rifle through the entire contents of a computer hard drive or look beyond one machine on a network to the others with which it shares data to find the information for which they have a legal warrant. Kozinski said he had "no cavil" with this conundrum, but he passionately argued that the court had to draw a line somewhere to stop targeted investigations from turning into fishing expeditions.
"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," Kozinski wrote. "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.... Let's take everything back to the lab, have a good look around, and see what we might stumble upon."
Kozinski didn't just assail the government's use of the plain view doctrine. He issued guidelines for all future cases in the 9th Circuit involving digital evidence. First among them: Magistrates authorizing computer search warrants "should insist that the government waive reliance upon the plain view doctrine." What's more, agents investigating a case must not comb through the seized data themselves but farm that task out to "specialized personnel or an independent third party," which should be authorized to give the government only the information spelled out in the warrant and nothing more.
According to the Obama administration, judges are following Kozinski's guidelines -- to calamitous effect. U.S. Solicitor General Elena Kagan filed a brief with the Appeals Court stating, "In some districts, computer searches have ground to a complete halt, and, throughout the circuit, investigations have been delayed or impeded."
Civil-liberties advocates have sharply criticized the Obama White House for its embrace of the George W. Bush administration's broad authorities for electronic surveillance of spies and terrorists. But the Obama Justice Department fired back at Kozinski's ruling, defending with equal vigor the government's right to search computers in domestic criminal cases. In the government's brief, which argues for an unprecedented en banc hearing of all 27 judges on the 9th Circuit Appeals Court, the administration said that the 11-judge panel "stepped outside [its] proper role" by issuing the new guidelines, which "a widespread consensus" among judges views as "binding" and "mandatory."
The administration offered a selection of cases demonstrating that investigators were "chilled" from seeking new warrants at all. One of the most startling involved federal agents in San Diego who were investigating two men accused of raping a 4-year-old girl and swapping images of the crime over the Internet. The administration claimed that the agents did not seek a warrant for the men's computers, "because of concerns that any evidence discovered about other potential victims could not be disclosed."
The government argues that the new guidelines will block investigators from a wealth of vital information because the rules ignore the peculiar nature of digital searches. A spokesperson for the solicitor general's office declined to elaborate on the case or the government's brief.
Legal experts following the case agreed that it received remarkably little media or scholarly attention, given its potential implications. But they differed on which aspect was more significant -- the restrictions on federal investigators or the enhancement of privacy protections.
"In terms of the decision, I've never seen anything like it," said Orin Kerr, a professor at the George Washington University Law School. "It's pages and pages of guidance without citing any authority [to issue it]. And it has everybody scratching their heads.
"Searching somebody's personal computer can reveal a tremendous amount of information about them," said Kerr, who concluded in a Harvard Law Review article four years ago that the plain view practice "may need to be narrowed or even eliminated in digital evidence cases to ensure that digital warrants that are narrow in theory do not devolve into general warrants in practice." In this case, however, the court got to that solution "indirectly," Kerr said, by taking the unusual step of issuing the search guidelines. "Judges aren't supposed to do this. In fact, they're told not to."
But Steve Kalar, the senior litigator for the federal public defender's office in San Francisco, welcomed the guidance, noting that federal investigators routinely search seized computers for evidence of other crimes -- particularly possession of child pornography -- by conducting general scans of hard drives. "It's a technological fallacy to say that an agent is tripping through the computer and finds this," he said.
Kalar called the government's claims of halted investigations a "tempest in a teapot," an attempt to "make [the ruling] appear it has broader impact than it really does." Kerr said that officials were "overstating a little bit" the breadth of the chilling effect, "but they're basically right. This threw an incredible amount of uncertainty into the rules."
The new search guidelines, which the full 9th Circuit or the Supreme Court could overturn, don't affect computer searches by intelligence agencies, which are governed by a different law and overseen by a special court. But in objecting to Judge Kozinski's new guidance, the Obama administration is making claims similar to those of Bush-era intelligence officials, who contended that technology has outstripped the law's capacity to keep pace with terrorists.
Federal officials argued in their brief that if investigators follow Kozinski's guidance, "before a search commences, case agents will need to spend days, weeks, or even months teaching both the underlying law and the specifics of the particular case to members of a filter team" -- the third party set up to review the seized data. "These concerns will be particularly acute in cases involving national security, because spies and terrorists often receive specialized training about concealing their tracks."
This article appeared in the Saturday, December 19, 2009 edition of National Journal.
Want to stay ahead of the curve? Sign up for National Journal’s AM & PM Must Reads. News and analysis to ensure you don’t miss a thing.
Join the Discussion