Fallout From the Steroid Case
This is interesting:
The 9th U.S. Circuit Court of Appeals’ 9-2 decision offered Miranda-style guidelines to prosecutors and judges on how to protect Fourth Amendment privacy rights while conducting computer searches.Ideally, when searching a computer’s hard drive, the government should cull the specific data described in the search warrant, rather than copy the entire drive, the San Francisco-based appeals court ruled. When that’s not possible, the feds must use an independent third party under the court’s supervision, whose job it would be to comb through the files for the specific information, and provide it, and nothing else, to the government.
Judges, the appellate court added, should be wary of prosecutors and perhaps “deny the warrant altogether” if the government does not consent to such a plan in data-search cases.
This is a Kozinski ruling and you can find the .pdf here.
August 27, 2009 10:40 am
Posted in: Domestic Affairs, Science and Technology
34 Comments
34 Responses
The Moar You Know - August 27, 2009 | 10:47 am · Link
One of the few true conservative jurists that I respect.
And he has suddenly made my job a lot more interesting.
Zifnab - August 27, 2009 | 10:48 am · Link
I’m sorry, but how is this a good idea? Now I get Halliburton and Diebold combing through my files, instead of the FBI. Hurray! I didn’t realize “privacy” meant “outsourcing civil rights abuses to the private sector”.
scav - August 27, 2009 | 10:49 am · Link
Phew. And what impact this might have on the whole your-computer-belongs-to-us searches by customs?
Ajay - August 27, 2009 | 10:51 am · Link
On paper it makes perfect sense. Whats missing here is third party to be a neutral and they shouldnt withhold any information or pass it on to anyone else.
A good step forward.
chopper - August 27, 2009 | 10:52 am · Link
very nice. well, an improvement at least. i expect the anti-4th-amendment crowd on the right to claim kozinski is pro-kiddie porn, but oh well.
SGEW - August 27, 2009 | 10:58 am · Link
Orin Kerr of Volokh sums up thusly:
Interesting indeed. I like the new rule(s), but am also confused by the reasoning. [IANALY, and this is out of my bailiwick]
Computers + Common Law + Forth Amendment = Headache
chopper - August 27, 2009 | 11:00 am · Link
@Ajay:
also, this is going to create issues with regards to searching of different types of files. i guess the decision is based on that fact, that when there is an ability to segregate your search to specific files then that must occur.
like if the cops have a warrant to check your kitchen for drugs, they can’t go rooting through your underwear drawer in your bedroom and find an illegal gun. but if you live in a 150 sq ft studio apartment where the kitchen is the bedroom you’re pretty much boned.
gopher2b - August 27, 2009 | 11:07 am · Link
3 to 1 SC overturns it. I mean, if you haven’t done anything wrong, then what do you have to worry about.
The Grand Panjandrum - August 27, 2009 | 11:07 am · Link
@Zifnab:
Precisely. And how do we regulate this? Are they subject to criminal or civil penalties if your information somehow ends up in the wrong hands? Will new laws need to be enacted? Oy … I’m not a attorney but I can imagine many more issues than this with regard to privacy. This really stinks.
Comrade Sock Puppet of the Great Satan - August 27, 2009 | 11:07 am · Link
Not a lawyer, but how does Kozinski back this up? To me, searching a hard drive is equivalent to searching a set of file drawers: I can’t see how he justifies having a wall between stuff that is pertinent versus stuff that is non-pertinent.
kth - August 27, 2009 | 11:08 am · Link
But the journos blew the lid off cheating in sports. Surely that justifies blowing off the 4th amendment (or the 5th, in the case of the leaks from the BALCO grand jury).
gopher2b - August 27, 2009 | 11:09 am · Link
@The Grand Panjandrum:
How do you get from “independent third party under the court’s supervision” to Haliburton.
It would obviousy be a discovery vendor and a neutral attorney and/or Special Master doing the collection. The better question is what court’s will do when these third parties mess up and inadvertently turn over evidence against you.
Napoleon - August 27, 2009 | 11:14 am · Link
Isn’t the 9th Circuit the one that tends to give the most liberal interpretation and also gets overturned more often then other circuits (if for no other reason the S Ct. is dominated by conservatives).
SGEW - August 27, 2009 | 11:17 am · Link
@Napoleon: Yup.
Joshua Norton - August 27, 2009 | 11:18 am · Link
When that’s not possible, the feds must use an independent third party under the court’s supervision, whose job it would be to comb through the files for the specific information, and provide it, and nothing else, to the government.
Orville, it will never fly.
I run a computer forensics dept. for a large law firm in California. We always use an “uninterested” third party to go and clone hard drives and lock up the originals, mainly to maintain a defensible chain of custody. It’s interesting that the judges should think that one of a third party’s jobs would be to sift through 100’s of gigabytes of emails to find things that may or may not apply to your interrogatories. Especially since their not lawyers and don’t have a clue as to the issues of the case or how the law is applied to them.
Rommie - August 27, 2009 | 11:20 am · Link
If this made it to the SC I think they would bury it because of the major change it makes to the Plain View doctrine when it comes to digital info. The Right 4 will likely take a dim view of Law Enforcement having to void PW every time they want a warrant, and can talk a 5th over to their side on that issue.
There’s also the whole “who’s paying for the independent specialist” angle one of the dissenters brings up.
Note to current and would-be criminals with computer info in Excel: make sure ur juicie info requires a right-scroll!
Joshua Norton - August 27, 2009 | 11:22 am · Link
@Joshua Norton:
since their not lawyers
s/b since they’re not lawyers…
When’s the edit function coming back?
donr - August 27, 2009 | 11:29 am · Link
My first thought is to wonder this has something to do with Kozinski’s fondness for cow porn.
jibeaux - August 27, 2009 | 11:34 am · Link
@Zifnab:
Well, the idea of course is that they provide the relevant information, and nothing else, to the government, under the court’s supervision, and remain independent of the prosecution. A filter of sorts. This is distinguishable from a government contractor, whose job it is to do exactly what the government would do. If the contractor is behaving exactly as the government would, i.e. turning everything over to the government, then you of course have a Fourth Amendment problem. I can certainly imagine potential problems or abuses with the situation since it is not ideal, but it may be the best feasible way.
There was a case here a while back where a police officer had been planting pipe bombs in various locations. Then he would usually “find” the pipe bombs and be a local hero. It was an odd sort of psychology at work there. Anyway, he had a number of different “scrubbing” programs on his computer designed to hide his searches, etc, but apparently these programs do not actually erase the information, just erase the pointers to the information that would lead you to it. So in this instance, I could see how the court might decide that the government could not feasibly find what they were looking for through a narrow search. Nor could they simply turn over the hard drive to the government. But the government could allow a third party of qualified computer professionals to comb the hard drive for anything related to making pipe bombs and turn it over to the government.
Zifnab - August 27, 2009 | 11:40 am · Link
@chopper: From the article:
I think this is more saying if there’s a warrant to search your kitchen for drugs, the police can’t walk off with your microwave and dishwasher and refrigerator if they find a bag of pot under your sink.
A cop or prosecutor would sift through the data and harvest specific files as evidence, rather than bulk copying the whole drive and leaving it on some file share accessible to everyone with clearance downtown.
I don’t see why a third party needs to become involved, though. If having some guy from the DEA or the IRS poking through my hard drive is troublesome, I can’t see why it would be better to have some guy from Acme Computer Forensics doing the exact same thing.
chopper - August 27, 2009 | 11:49 am · Link
@Comrade Sock Puppet of the Great Satan:
this case was about searching a database. databases are trivially easy to search and its reasonable to expect a search of one to be limited to the search terms and extraneous data to be kept to a minimum. yet instead of searching for data for 10 people they did over a hundred. pretty blatant overreach of the intent of the warrant.
in the case of a file type where we have no decent technology to cull specifics (like say videos) then the standard would have to be different of course.
but the court is saying that in this case the warrant was easily restrictable to a certain set of output and by nature of the type of file searched the walls blocking the searchers from rooting around elsewhere under the doctrine of ‘plain sight’ were high.
Zifnab - August 27, 2009 | 11:49 am · Link
@jibeaux: That makes a bit more sense, at least.
slag - August 27, 2009 | 11:56 am · Link
@Joshua Norton: I could see that. I know people who work in compliance and they’re always trying to create a magical sifting software. Never works. It’s sometimes hard to know what you’re looking for until after you’ve found it. Which, I suspect, is what this ruling is trying to prevent—the whole guilty until proven innocent problem.
The Grand Panjandrum - August 27, 2009 | 12:05 pm · Link
@gopher2b: That is my question as well. How do you handle that eventuality. It will happen. @jibeaux: That does expand my understanding a bit, but it still doesn’t address the issue of how is this then regulated? Does the court have sole discretion or is new legislation required? This is somewhat confusing. fourth Amendment not withstanding doesn’t a vendor acting on behalf of the court then become an agent of the government?
I realize this is all somewhat nitpicking but I’m still not seeing how the outsourcing works. Are these vendors, officers of the court in the same way an attorney is? Doesn the court, or prosecutors, ever outsource other types of forensic investigation? The one I can think of where they might is accounting.
gex - August 27, 2009 | 12:06 pm · Link
@Comrade Sock Puppet of the Great Satan: I think the difference here is searching your house, finding evidence related to the warrant, and removing that evidence. Instead of getting a warrant and grabbing the entire contents of the house.
We are talking databases here, people. This was a database and the government took all the records, not just the records related to the person of interest. It’s like going to a doctor’s office and grabbing all the medical files, not just the file for specific patients.
someguy - August 27, 2009 | 12:55 pm · Link
Gex, I’m guessing you clerked for Judge Reinhold.
Plain view doctrine means that if the cops have a right to be somewhere (public, in your house pursuant to a valid warrant issued on probable cause) and they see something incriminating, that they may seize that evidence (not the whole contents of your house).
Plain view also means they can’t go digging for it. If they have a warrant to get a suspected murder weapon, and it’s on your coffee table, they can seize the weapon, and also the clear 1 gallon plastic bag full of weed you inadvertantly left on the sofa. If they’ve found the weapon, they can’t go search the upstairs of the house where they find your stash of cow porn. They can’t even sit there and start turning your big screen around to see if the serial numbers match a list of stolen TV’s. Of course if the warrant is written for a more comprehensive search of the premises – ‘to seize weapon allegedly used in crime and to search premises for other physical evidence of the liquor store robbery and homicide” then they can search more broadly.
On the computer – I’m not so sure that plain view doctrine really works that well, since a lot of the kinds of things you might find on a computer are not visually well-represented in the graphic user interface. Not sure how searches by cops, or third parties acting as cops, under direct judicial supervision, is going to stand up on review. I suspect that the blurring of the line between impartial judge and police supervisor is going to result in a bigger-than-5 justice majority overturning this decision.
KG - August 27, 2009 | 1:11 pm · Link
@Zifnab: the third party will likely be a receiver appointed by the Court. Receivers in cases like this would likely be a lawyer in private practice, which means that they would be subject to sanctions by the Court and would also likely be disciplined by the State Bar if stuff was leaked.
It’s a shame Kozinski will never be elevated to the Supreme Court, I really like the guy.
gopher2b - August 27, 2009 | 1:16 pm · Link
@KG:
More work for lawyers
God knows we need it.
Roger Moore - August 27, 2009 | 1:16 pm · Link
@Comrade Sock Puppet of the Great Satan:
And that’s exactly how he justifies it. There are already rules about searching through giant stacks of physical files, which he referenced in the ruling. The way it’s supposed to work is that somebody not involved in the investigation sorts through the files to find the ones covered by the warrant. Those files, and only those files, are turned over to the investigators. This ruling is just an attempt to apply the same principle to computer data.
PC - August 27, 2009 | 1:25 pm · Link
To me, searching a hard drive is equivalent to searching a set of file drawers: I can’t see how he justifies having a wall between stuff that is pertinent versus stuff that is non-pertinent.
Another issue is that my set of file drawers at home is 1/20th the size of the Library of Congress. In a few more months they will be 1/10th the size of the Library of Congress, and if HDD manufacturers are to be believed, by 2010-2011, petabyte drives will be available to consumers. The law needs to be amended to deal with this volume of data in regards to searching and “plain view.”
burnspbesq - August 27, 2009 | 1:30 pm · Link
@scav:
None. The border is a completely different animal where search and seizure law is concerned. You are still well advised to back up your hard drive to DVDs, FedEx the DVDs to yourself, and reformat your drive before you come home.
burnspbesq - August 27, 2009 | 1:34 pm · Link
@The Grand Panjandrum:
What-you’d rather just hand over the entire contents of your hard drive to law enforcement, with no limits on the scope of their snooping? That is the current rule.
This decision is nothing but good news. If it doesn’t go as far as you’d like, too bad.
Joshua Norton - August 27, 2009 | 1:48 pm · Link
The main problem is that eDiscovery is a relatively new animal and people are still feeling their way around. Beyond where you can search there were issues such as how you should receive the data – in a form you can use or should opposing counsel just dump the raw data on you and let you figure it out.
A lot of what can and cannot be done has been formulated on a case by case basis starting with Zubulake. California just passed legislation dealing with this last week. Prior to that the judges mostly relied on Federal law. And since technology changes every year, the laws have to be continually fine tuned to deal with those changes.
10 years ago it wouldn’t have been considered that burdensome or expensive to subpoena the entire contents of a file server and all the backup tapes. Nowadays you’d need a large truck and about $100,000 to comply, so judges don’t let you do that any more, unless you’re willing to foot the bill.
bago - August 27, 2009 | 3:49 pm · Link
So how does this apply if you encrypt the files? Can you be forced to give up your password or can you refuse using your 5th amendment rights?