In 2002, while federal law enforcement agents at the SEC were busy ignoring warnings about Bernie Madoff's massive Ponzi scheme, federal agents at the Justice Department were launching an aggressive investigation into steroid use by major league baseball players. With Barry Bonds identified as a public enemy and Madoff as an honest businessman, the government conducted a wholesale seizure of major league drug testing records, with unsurprising disregard for the 4th Amendment. ("The Fourth Amendment has been virtually repealed by court decisions, most of which involve drug searches," Yale law Professor Steven Duke told Wired Magazine back in 2000.)
This time, however, the courts struck back. Last week in United States v Comprehensive Drug Testing Inc., the case spawned by the BALCO (Bay Area Lab Cooperative) investigation, the 9th Circuit Court of Appeals upheld lower court rulings that federal agents acted illegally when they seized test results for hundreds of athletes, in violation of a warrant authorizing the seizure of test results for only ten named baseball players. The court ordered the records returned and barred prosecutors from using them (noting that some players, had "already suffered harm" when their names were leaked from the illegally seized lists.) "This was an obvious case of deliberate overreaching by the government in an effort to seize data as to which it lacked probable cause," Judge Alex Kozinski observed, in a relatively mild rebuke of federal agents in this case. "All three judges below expressed grave dissatisfaction with the government's handling of the investigation," Kozinski noted, "some going so far as to accuse the government of manipulation and misrepresentation."
Federal judges do not issue accusations like this casually, or often, although they may be merited as often as not. Prosecutorial misconduct is a familiar source of injustice and one that's been exacerbated in recent decades by dramatic expansions of federal criminal jurisdiction, increases in prosecutorial discretion under mandatory minimum sentencing laws (at both the state and federal level), and by the war on drugs, which eviscerated fundamental civil liberties and skewed law enforcement priorities. Combine these policies with unprecedented opportunities for surveillance available to unscrupulous prosecutors in the digital age, and the urgent need for judicial oversight is impossible to overstate.
The 9th circuit tries to provide it in the BALCO case. Its procedural history is complicated (the majority opinion offers a summary of it;) but the case turned on important, general questions involving the practical and legal challenges of segregating data that the government is expressly authorized to seize from data that it has no right even to see.
The Court explained: "the government here did seek advance authorization for sorting and segregating the seized materials off-site. But, as Judge Cooper found, '[o]nce the items were seized, the requirement of the Warrant that any seized items not covered by the warrant be first screened and segregated by computer personnel was completely ignored.' Brushing aside an offer by on-site CDT personnel to provide all information pertaining to the ten identified baseball players, the government copied from CDT's computer what the parties have called the "Tracey Directory" which contained, in Judge Cooper's words, "'information and test results involving hundreds of other baseball players and athletes engaged in other professional sports.' "
Having refused to allow the segregation of data not covered by the warrant, the prosecution then claimed the power to seize all the data under the "plain view" doctrine (which allows agents to seize evidence of a crime that they stumble upon in good faith, in plain view.) You might call the plain view claim chutzpah, given the government's apparent, bad faith effort to "stumble" upon the test records. The Court called the claim "too clever by half," adding that in the future, the government should "agree to 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."
In other words, as their conduct in this case made clear, law enforcement agents cannot be trusted to respect constitutional limits on their power. They must be supervised closely and held accountable by the judiciary. This, of course, is not a new concept; it's a foundational one, which, if decreasingly invoked by courts is increasingly essential to liberty, as government agents persist in trying to turn technological opportunities for surveillance into the legal authority to engage in it.
(Photo: Flickr User billaday)