Thursday, August 27, 2009

And Now For Something Completely Different....

As a warning to the reader, the following has absolutely nothing to do with water. But it is a sufficiently important legal development that I felt compelled to draw attention to it.

Yesterday an 11 member en banc panel of the United States Court of Appeals for the Ninth Circuit handed down a decision in the case United States v. Comprehensive Drug Testing, Inc.. The decision involves an appeal of three orders, from three different District Courts, which variously struck down certain subpoenas and ordered the return of certain property seized by the government.

The facts are very clearly laid out in the decision and I won't rehash them here - suffice to say the majority of the panel felt the government acted improperly. The upshot of the decision is that the Ninth Circuit has issued an unprecedented set of rules regarding warrants and subpoenas for the search and seizure of electronic information. Perhaps the most significant of these rules is that Magistrate Judges must now insist that the government waive the "in plain view" doctrine in digital evidence cases before issuing any warrant or subpoena.

Generally, the "in plain view" doctrine states that the government (i.e. the police, FBI etc.) may seize evidence of a crime that is in plain view. A simple example of the operation of the doctrine is as follows: The police obtain a valid warrant to search the house of a suspect for a gun used in a murder. During the lawful search of the house, they discover illegal drugs. Though the drugs are not included in the warrant, they were in plain view of the officers conducting the search of the house and thus can be seized and used as evidence against the suspect.

This doctrine poses practical problems with respect to the search of commingled electronic data. The Ninth Circuit noted this problem succinctly:

The problem can be stated very simply: There is no way to be sure exactly what an electronic file contains without somehow examining its contents—either by opening it and looking, using specialized forensic software, keyword searching or some other such technique. But electronic files are generally found on media that also contain thousands or millions of other files among which the sought-after data may be stored or concealed. By necessity, government efforts to locate particular files will require examining a great many other files to exclude the possibility that the sought-after data are concealed there.

Once a file is examined, however, the government may claim (as it did in this case) that its contents are in plain view and, if incriminating, the government can keep it. Authorization to search some computer files therefore automatically becomes authorization to search all files in the same subdirectory, and all files in an enveloping directory, a neighboring hard drive, a nearby computer or nearby storage media. Where computers are not near each other, but are connected electronically, the original search might justify examining files in computers many miles away, on a theory that incriminating electronic data could have been shuttled and concealed there.

The Ninth Circuit's response to this problem, as noted by the dissent, effectively tosses the doctrine out the window when the search involves electronic data. This is a sweeping decision that will have enormous ramifications to the issuance of warrants and subpoenas within the Ninth Circuit, and possibly elswhere if other courts follow suit.

As we move further into the 21st Century ever more of our lives reside as electronic data. The extent to which the government has access to that data may well define civil liberty in the 21st Century. Thus, though it is certainly way off topic for this blog, I recommend you read the decision (and dissents). The decision in particular is written very clearly with a minimum of legalese.

The government is apparently considering appealing the decision to the Supreme Court.

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