Bytes, BALCO, and Barry Bonds: An Exploration of the Law concerning the Search and Seizure of Computer Files and an Analysis of the Ninth Circuit's Decision in United States V. Comprehensive Drug Testing, Inc

By Regensburger, Derek | Journal of Criminal Law and Criminology, Summer 2007 | Go to article overview

Bytes, BALCO, and Barry Bonds: An Exploration of the Law concerning the Search and Seizure of Computer Files and an Analysis of the Ninth Circuit's Decision in United States V. Comprehensive Drug Testing, Inc


Regensburger, Derek, Journal of Criminal Law and Criminology


I. INTRODUCTION

"What happened to the Fourth Amendment? Was it repealed somehow?" (1) Those are the chilling words of U.S. District Judge James Mahan, echoed by Ninth Circuit Judge Sidney Thomas in his dissent in United States v. Comprehensive Drug Testing, Inc. ("CDT"). (2) The questions are in reference to federal agents' seizure and subsequent search of confidential medical records in relation to their investigation of the illegal distribution of steroids by the Bay Area Laboratory Cooperative ("BALCO"). (3) The agents had issued subpoenas to and then executed search warrants on two independent testing labs to obtain the steroid testing records of ten Major League Baseball ("MLB") players who had connections to their investigation of BALCO. (4) The Ninth Circuit upheld the agents' seizure and subsequent search of computer files, which contained steroid drug testing results not only for the ten targets of the federal investigation, but countless other athletes inside and outside of baseball. (5)

Because of its connection to steroids and the government's investigation into BALCO and San Francisco Giants' slugger Barry Bonds, the decision received nationwide attention. Bonds's name is inextricably tied to the BALCO investigation, having been linked to BALCO and steroid use in a recent New York Times bestseller. (6) Bonds was recently indicted on perjury and obstruction of justice charges that stemmed from allegedly false statements he made to the federal grand jury investigating illegal steroid distribution at BALCO. (7) It has even been speculated that one of the motivations behind the government's initial investigation of BALCO was a personal vendetta that the government's lead investigator, Jeff Novitsky, had against Bonds. (8)

Apart from its notoriety, the CDT decision is important in several respects. First, it attempts to define the parameters and limitations involved in computer searches, particularly with respect to the seizure and subsequent search of intermingled files. (9) The CDT court held that government agents can seize entire collections of computer data for off-site review where files within the scope of the search warrant are intermingled with irrelevant data on the computer's hard drive. (10) It also permitted the government to browse the contents of computer files to determine if they are within the scope of the warrant, without having to limit such a search to key words or file type. (11) This part of the ruling recognizes the inherent need for flexibility in conducting computer searches.

Second, the decision is also notable for what it does not do--give adequate protection to the privacy concerns of innocent third parties whose records are caught up in the government's dragnet. The case raises a fascinating question: What privacy concerns are implicated when the government obtains confidential medical records from a disinterested third party and what steps have to be taken to ensure that such concerns are not violated? The majority opinion seems to give short shrift to privacy rights, giving the government virtual carte blanche to search intermingled data that it seizes. This power is subject to post-seizure review by a magistrate, but this review is only after a proper objection has been filed by an aggrieved party. (12) In other words, the government is free to search the seized data until such objection is made. Thus, the ruling affords somewhat uncertain status to the prospect of effective judicial oversight, as there is no mechanism for providing notice to aggrieved third parties that their heretofore confidential records have been seized by the government. (13)

In addition, given the myriad issues present in the case, the decision may serve as the perfect vehicle for the United States Supreme Court (should it be given the opportunity to review the case) to lay out a consistent, uniform set of guidelines for the government to follow in conducting computer searches--something that is sorely lacking in the current jurisprudence on this issue.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Bytes, BALCO, and Barry Bonds: An Exploration of the Law concerning the Search and Seizure of Computer Files and an Analysis of the Ninth Circuit's Decision in United States V. Comprehensive Drug Testing, Inc
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.