Baseball and the Search for Electronic Records
Pike, George H., Information Today
It is not often that I have a chance to write about baseball in this column, or about steroid use. However, a recent court decision involving baseball and steroids may end up being a landmark decision limiting the right of the government to seize electronic data records. And that is definitely worth writing about.
Since 2002, the government has been investigating the Bay Area Lab Co-Operative (BALCO) for its involvement in the use of illegal steroids, particularly among athletes. About the same time, Major League Baseball (MLB) and the Major League Baseball Players Association (MLBPA) entered into an agreement to provide drug testing for steroids. The testing was done by Comprehensive Drug Testing (CDT), an independent testing company, and the results were only supposed to be shared with the MLB and MLBPA.
BALCO Search Warrants
As part of its BALCO investigation, the government obtained search warrants for CDT's records, specifically focusing on 10 individuals who had allegedly been connected to BALCO. However, since the records were in the form of computer files, the government actually obtained the records for hundreds of ballplayers and other athletes and individuals because these records were intermingled with those of the 10 specific individuals.
After the records were seized, MLB, the MLBPA, and CDT went back to court to force the government to return the records that were seized. In late August, the federal 9th Circuit Court of Appeals ruled that the government had misused its authority to seize records properly under the search warrants and ordered the records returned. More importantly, the court issued strong new guidelines on the seizure of electronic records and data files.
The Fourth Amendment
The Fourth Amendment gives citizens the right to be "secure in their persons, houses, papers and effects against unreasonable searches and seizures." As its enforcement mechanism, the amendment also notes that search warrants may only be issued "upon probable cause," and that they must "particularly describ(e) the place to be searched and the persons or things to be seized."
The legitimate challenge for the government in the case of computer records is that "particular" records can often be difficult to identify on a computer drive containing hundreds or thousands of records. In addition, records are often encrypted, password-protected, or mislabeled (perhaps deliberately) to provide increased security or to avoid detection. Finally, records may also be stored remotely, where they may be commingled with the records of hundreds, thousands, or hundreds of thousands of other people.
Previous court decisions have held that the government could physically or electronically seize computers, servers, hard drives, backup tapes, or other devices, if the devices have records that the government is seeking. This is permitted to secure the information and allow the government the opportunity to analyze the computer or drive forensically and obtain the information it seeks.
In Plain View
However, it is not uncommon for other information to be accessed in the process of looking for particular records. In the BALCO case, the government invoked a legal concept known as "plain view" to seize additional records showing positive steroid tests by other ballplayers. The plain view doctrine provides that a police officer or government investigator may seize any evidence of criminality that is in the officer's "plain view. …