The 9th U.S. Circuit Court of Appeals Guts its Own 2009 “Electronic Plain View” Decision in the Comprehensive Drug Testing Case

Guidance Software In a surprising u-turn, electronic search and seizure guidelines designed to protect Fourth Amendment privacy rights during court-authorized computer searches were nullified on Monday by the 9th Circuit Court of Appeals.

Instead, the judges urged “greater vigilance on the part of judicial officers in striking the right balance between the government’s interest in law enforcement and the right of individuals to be free from unreasonable searches and seizures.”

The original 2009 decision offered detailed guidelines concerning the government’s wholesale seizure of thousands of electronically stored information (ESI) relating to an anonymous drug testing program provided for in a collective bargaining agreement between Major League Baseball (MLB) owners and the MLB Players’ Association. That decision was widely criticized for its lack of authority for the promulgated guidelines.

The court recognizes that “The process of segregating electronic data that is sizable from that which is not must not become a vehicle for the government to gain access to data which it has no probable cause to collect.”

Segregating and redacting ESI to separate potentially relevant from irrelevant evidence is used every day in civil e-discovery and there is no reason why law enforcement cannot use similar protocols and procedures in conducting electronic searches pursuant to a warrant.

EnCase® Enterprise and EnCase® eDiscovery are good examples of technology available to both law enforcement and corporations that can be used to both effectively and economically separate the wheat from the chaff by enabling targeted investigations both on and off the network.

Since technology evolves at a much quicker pace than does the law, there currently is still a wide gap between practice and principle. This court is essentially showing a willingness to narrow the gap between forensic practice and legal principle by urging practitioners to use the latest technology and appropriate protocols to target only the electronically stored information that is subject to the search warrant and/or subpoena.

This case illustrates both the challenges faced by modern law enforcement in retrieving information it needs to pursue and prosecute wrongdoers, and the threat to the privacy of innocent parties from a vigorous criminal investigation.

A copy of the decision can be found here.

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