[Infowarrior] - Obama Wants Computer Privacy Ruling Overturned

[Richard Forno]

Obama Wants Computer Privacy Ruling Overturned
	• By David Kravets
	• November 25, 2009  |

http://www.wired.com/threatlevel/2009/11/obama-wants-computer-privacy-ruling-overturned/
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.