http://www.wired.com/threatlevel/2009/11/obama-wants-computer-priva...

The Obama administration is seeking to reverse a federal appeals court decision that dramatically narrows the government’s search-and-seizure powers in the digital age.

Solicitor General Elena Kagan and Justice Department officials are asking the 9th U.S. Circuit Court of Appeals to reconsider its August ruling that federal prosecutors went too far when seizing 104 professional baseball players’ drug results when they had a warrant for just 10.

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.

Kagan, appointed solicitor general by President Barack Obama, joined several U.S. attorneys in telling the San Francisco-based court Monday that the guidelines are complicating federal prosecutions in the West. The circuit, the nation’s largest, covers nine states: Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington.

“In some districts, computer searches have ground to a complete halt,” the authorities wrote. “Many United States Attorney’s Offices have been chilled from seeking any new warrants to search computers.” (.pdf)

The government is asking the court to review the case with all of its 27 judges, which it has never done. If the court agrees to a rehearing, a new decision is not expected for years, and the August decision would be set aside pending a new ruling. Either way, the U.S. Supreme Court has the final say.

The controversial decision, which the government said was contrary to Supreme Court precedent, outlined new rules on how the government may search computers. (.pdf)

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 court said. When that is not possible, the authorities 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, according to the ruling.

The government said the decision was already chilling at least one rape case in Washington State.

“Federal agents received information from their counterparts in San Diego that two individuals had filmed themselves raping a 4-year-old girl and traded the images via the internet,” the government wrote. “The agents did not obtain a warrant to search the suspects’ computers, however, because of concerns that any evidence discovered about other potential victims could not be disclosed by the filter team. The agents therefore referred the case to state authorities.”

The circuit’s ruling came in a case that dates to 2004, when federal prosecutors probing a Northern California steroid ring obtained warrants to seize the results of urine samples of 10 pro baseball players at a Long Beach, California drug-testing facility. The players had been tested as part of a voluntary drug-deterrence program implemented by Major League Baseball.

Federal agents serving the search warrant on the Comprehensive Drug Testing lab wound up making a copy of a directory containing a Microsoft Excel spreadsheet with results of every player that was tested in the program. Then, back in the office, they scrolled freely through the spreadsheet, ultimately noting the names of all 104 players who tested positive.

The government argued that the information was lawfully found in “plain sight,” just like marijuana being discovered on a dining room table during a court-authorized weapons search of a home. But the court noted that the agents actively scrolled to the right side of the spreadsheet to peek at all the players test results, when they could easily have selected, copied and pasted only the rows listing the players named in the search warrant.

Four players whose names were seized, and who were not linked to the BALCO investigation, have been leaked to The New York Times. They are Alex Rodriguez, David Ortiz, Manny Ramirez and Sammie Sosa.

Two dissenting judges wrote that the majority was also sidestepping its own precedent in which the circuit court had denied the suppression of child pornography evidence found on a computer during a search for the production of false identification cards pursuant to a valid warrant.

In 2006, the 9th Circuit originally sided with the government in a 2-1 decision, which the court overturned with an 11-judge “en banc” panel in August.