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

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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 Was it repealed somehow?"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. …