When federal agents searched the offices of Comprehensive Drug Testing in Long Beach, Calif., on April 8, 2004, they officially were looking for the records of 10 baseball players suspected of buying steroids from the Bay Area Laboratory Co-Operative (BALCO), a sports nutrition center whose owners had been charged with illegal steroid distribution. They left with information that went far beyond what their warrant described, including data on 1,200 baseball players and almost 3,000 computer files unrelated to Major League Baseball drug testing.
The U.S. Court of Appeals for the 9th Circuit recently told the government it may keep these records because they were "intermingled" with the records of the 10 original targets. But you needn’t worry about the privacy of your electronic records, as long as you’re confident they haven’t been hanging with the wrong crowd.
Then again, no one can be sure of that. According to the rule endorsed by the two-judge majority, wrote dissenting 9th Circuit Judge Sidney Thomas, the government "may seize, retain and view all confidential records in any electronic database on which private data responsive to a warrant resides." In effect, he said, this decision "removes confidential electronic records from the protections of the Fourth Amendment."
The majority said people who object to a seizure after the fact can ask a magistrate to review the information and decide whether there is probable cause to retain it. But the magistrate can let the government keep records outside the scope of the warrant if he or she decides they cannot be removed "without creating new documents" or "without distorting the character of the original document."
More important, by letting the government seize first and answer questions later, this approach puts the burden of preventing an unreasonable seizure on people who may not even realize their records have been taken. In this case, along with information on baseball players, whose union challenged the seizure, the government took the medical records of players in 13 other sports organizations, participants in three athletic competitions and employees of three businesses.
The baseball dragnet is bad enough, especially since management promised the players these drug tests, conducted in 2003, would remain anonymous and confidential. The tests were aimed at estimating the prevalence of steroid use in Major League Baseball, and they were not supposed to be the basis for disciplinary action, let alone criminal investigation.
Yet the government already has used information outside the original warrant to obtain additional warrants aimed at the records and urine samples of every baseball player who tested positive for steroids in 2003. The vast majority of these 100 or so players were not even suspected of involvement with BALCO.
The government planned a wide search from the beginning. It initially obtained a grand jury subpoena demanding drug-testing data for all Major League Baseball players. After Comprehensive Drug Testing and the players’ union objected, it switched to a much narrower subpoena focused on 11 players. When they said they planned to challenge that subpoena as well, it sought a search warrant from a different court.
Federal agents chose not to isolate the information described in the warrant by performing an on-site database search. They also declined to submit the records to a magistrate for redaction, an approach suggested by the drug-testing company (and favored by Judge Thomas).
As a result, the government got what it wanted without having to ask for it. And then some: It has left open the possibility of using drug-testing data on people who are not even baseball players, let alone baseball players associated with BALCO, to launch new investigations — of steroid use in the National Hockey League, for example.
The 9th Circuit’s loose treatment of "intermingled" data allows investigators to peruse the confidential electronic records of people who are not suspects, hoping to pull up something incriminating. It replaces a particularized warrant based on probable cause with a fishing license.
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