A Federal Appeals Court Upholds the Government's Seizure of Computer Records of Major League Baseball Players' Drug Tests

Last week, a divided panel of the U.S. Court of Appeals for the Ninth Circuit rejected challenges to the federal government's 2004 seizure of computer files relating to illegal steroid use by professional baseball players and other athletes. The decision in United States v. Comprehensive Drug Testing, Inc. (CDT) has implications well beyond the fate of Barry Bonds, the Bay Area Lab Cooperative (Balco), and even professional sports. Indeed, quoting the opinion of one of the district judges whose rulings last week's decision reversed, dissenting appellate Judge Sydney Thomas asked: "What happened to the Fourth Amendment? Was it repealed somehow?"

The technical answer, of course, is no. Judge Diarmuid O'Scannlain's majority opinion says that the government complied with the Fourth Amendment. Moreover, the majority opinion restricts the government's ability to use files unrelated to steroid use by professional baseball players.

Nonetheless, in permitting the government to retain possession of, and gather further evidence relating to, steroid use by players with no prior known connection to Balco, the ruling vindicates the core of the government's case. The issues are difficult because computer technology poses new challenges for understanding the implications of a provision drafted with a quill pen in the eighteenth century--the Fourth Amendment's prohibition on "unreasonable searches and seizures."

The Core Issues in the CDT Case

The CDT decision resolved a consolidated appeal of three related cases covering what the majority aptly termed "a farrago of arguments." The slip opinion (including the dissent) is 115 pages long, and so I shall provide a necessarily abbreviated account.

The issues arise out of a federal grand jury investigation into Balco, which provided illegal steroids to major league baseball players. In 2004, the grand jury issued a subpoena to CDT and another lab, Quest, demanding information relating to ten professional baseball players (widely reported to include Bonds) who had been clients of Balco.

In order to protect the privacy of the players, CDT resisted the subpoena. After announcing its intention to move to quash (that is, ask a court to nullify) the subpoena, CDT agreed in writing that it would not destroy or disturb samples or data, pending judicial resolution of the motion to quash.

Without waiting for a court to rule on the motion to quash, however, the government sought and obtained search warrants for drug test results of the ten baseball players implicated in the Balco case. The government told the magistrate--who had not previously been involved in the case--that CDT intended to move to quash the subpoena, but neglected to mention the written agreement to preserve evidence. Dissenting Judge Thomas thought that this omission rendered the warrant application less than fully honest.

When federal agents executed the warrant, they copied a computer directory containing files that had data about not only the ten named subjects of the investigation, but many other baseball players and athletes in other sports. The principal controversy resolved by last week's decision concerned whether the government could retain these other files.

The Scope of Warrants in Physical Space, and in Cyberspace

When the government searches for evidence of crime in the physical world, the warrant authorizing the search limits its scope. Suppose the police obtain a warrant to search the home of Zelda the Zoologist for a tiger--an illegal pet. In executing the warrant, if the police hear roaring from the basement, they may not first open the drawers of Zelda's night table; the tiger could not possibly fit in the night table. However, if, in the course of legitimately searching for the tiger, the police come across Zelda's stash of illegal drugs, they may seize the drugs, pursuant to the so-called "plain view" exception to the warrant requirement. The Fourth Amendment does not require a new warrant for the police to seize evidence of crime outside the scope of the original warrant that is found in plain view in the course of otherwise lawful police activity.

These same principles presumably apply to searches of computer records, but exactly how they apply is unclear. Suppose the government has a warrant to search Sam Sleazeball's computer for evidence of illegal possession of child pornography. Must they limit the search to files contained in a directory labeled "porn?" Surely they should also be able to look in the "temporary internet files" directory. Indeed, the search might reasonably encompass all files on Sleazeball's computer, for he might well have tried to hide the nature of his activity from others who use the computer.

The issue is less clear in the Balco case, however, because the target of the search, CDT, was an innocent third party that was not accused of any wrongdoing. Also, CDT employees were willing (in light of the warrant) to assist the federal agents in obtaining just the information sought, by identifying specific files, rather than whole directories. For that reason, among others, Judge Thomas thought the federal agents acted unreasonably in copying further information, beyond files relating to the Balco players.

The majority of the Ninth Circuit panel thought otherwise, for two main reasons. First, the majority noted that in executing a warrant against an innocent third party, the intrusiveness of the search can be measured by how much it disrupts the third party's operations and consumes the time of its personnel. Copying a whole directory onto a USB flash memory drive takes only seconds, whereas sorting through files while on the premises will be more time-consuming and less thorough.

Second, the majority noted that selective onsite sorting will not always be possible. For example, Quest, the second lab that was searched, did not store samples or data by players' names, but by numbers, with the number/name key kept offsite.

To these rationales, the majority might have added a third: It is not always easy to distinguish between third-party innocents and complicit parties. I asked Paul Scott, Chief Operating Officer of the Agency for Cycling Ethics, and an expert on sports anti-doping, whether the government might have had reasons to mistrust the search targets. He said yes, pointing to the fact that Balco had been a client of Quest. In order to test whether its illegal products were detectable, Balco asked Quest to test blood and urine samples of athletes using Balco products. If the tests came back clean, Balco promoted the products. Although Scott says that Quest was acting legally as a "neutral" lab, the government could reasonably have feared it might receive less than full cooperation from a lab that had previously worked, albeit legally, for the target of its investigation.

Warrants and Subpoenas

Another contested point in last week's decision concerned the government's simultaneous use of warrants and subpoenas. Much of the disagreement centered around how to read prior Ninth Circuit precedent, and the extent to which the Justice Department's own guidelines can be enforced by courts under the Federal Rules of Criminal Procedure. The doctrinal details need not concern us here. The majority's bottom line was that a federal grand jury subpoena for some piece of evidence may be issued simultaneously with a warrant for that same evidence.

That is important, in general, because of the potential harm to third-party innocents. Such persons and organizations would, in almost all circumstances, prefer to be asked to comply with a subpoena by producing information or items on their own, than to be subject to an intrusive and disruptive search by law enforcement officials.

Nonetheless, the majority opinion breaks no new doctrinal ground in permitting the government to pursue evidence by multiple routes. Prior precedents also permitted the government to proceed simultaneously via subpoenas and warrants.

Intermingled Data and Bootstrapping

For baseball and its players, the most significant consequence of last week's ruling concerns the use of so-called intermingled data. Although the majority held that the copying of whole directories was not itself unlawful, Judge O'Scannlain also restricted what the government could do with that data after leaving the CDT premises. He wrote that

"while the government may seize intermingled data for off-site review to minimize intrusiveness of a computer search, it may not retain or use the evidence after proper objections are raised, unless a magistrate subsequently reviews and filters the evidence off-site. . . . In the context of computer files, we believe that most seized materials can be pared down considerably, but that certain files--spreadsheets of only a few pages, for example--may be retained in whole."

Here we have both a rule and an exception. Despite dissenting Judge Thomas's warnings about the "repeal" of the Fourth Amendment, the rule provides considerable protection for privacy. Meanwhile, the exception for short files--the cyber-equivalent of the "plain view" exception in the physical world--is quite narrow.

Unfortunately for professional baseball players, however, the rule will not benefit them in this case. Among the items the government seized from CDT was a 25-page list of all major league baseball players who tested positive for the 2003 season. Results for the Balco players were intermingled on this list with those of over 100 other players.

On its face, 25 pages is more than "a few pages," and so the master list appears to be outside the exception for short spreadsheets. One might therefore think that on remand, the federal magistrate should black out government access to all but the names of the Balco players.

However, last week's ruling entitles the government to use the master list for a wholly separate reason. After the government seized the list from CDT, it obtained a search warrant covering all professional baseball players who tested positive for using illegal substances. That information, while not clearly relevant to the Balco investigation, is a legitimate source of concern for the government: Players using illegal substances may themselves have committed crimes; at the least, knowing their identities may enable the government to track down and prosecute those who illegally supplied them.

To be sure, there is something more than a little fishy about the warrant covering the 100-plus non-Balco players. Apparently, part of the evidentiary basis that the government offered to justify getting the warrant for the non-Balco-player data was the master list itself. But if the government had no right to look beyond the Balco players in the first place, it cannot, without transparent bootstrapping, use the fruits of such unwarranted looking beyond to justify that very looking beyond.

Judge O'Scannlain's opinion does not directly address this bootstrapping objection, but it doesn't need to, because the ex post facto warrant was not the only ground for the government's retention of the master list of positive-testing baseball players. In addition to obtaining a fishy warrant for the full list of names, the government also obtained a grand jury subpoena for that same information, and the standard for obtaining a lawful subpoena--which asks simply whether the information sought falls within the legitimate scope of a grand jury investigation--is considerably more lenient than the standard for obtaining a warrant: probable cause. Accordingly, the majority effectively held that the government was entitled to the full list of positive-testing players without having to rely on the bootstrapping use of that very list as a basis for obtaining it.

False Promises of Privacy

Thus, the CDT decision may have an important impact on the fate of over one hundred professional baseball players, but does not pose a grave threat to privacy in America more generally. Or, to be more precise, it does not pose the particular grave threat that the dissent fears. At another level, however the case does underscore the precariousness of privacy.

The samples CDT tested were produced pursuant to a negotiated agreement between Major League Baseball and its Players' Association. Under the policy in effect in the 2003 season, the identity of players who tested positive for steroid use would not be disclosed, and no disciplinary action would be taken. The point of the tests was simply to enable baseball to determine how widespread steroid use was, so that it could decide whether further steps needed to be taken. (Baseball subsequently adopted a more restrictive policy.)

Players who provided samples in 2003--including the Balco players--can understandably feel betrayed. They were told by their union and Major League Baseball that the samples would not be used against them as individuals, but now they face the possibility of public embarrassment and, in some cases, even criminal prosecution.

In retrospect, it is difficult to see how the Players' Association could not have anticipated this possibility. The 2003 policy called for testing of its members for the presence of illegal substances, and it was only to be expected that the government might take an interest in gaining access to information about these illegal substances. Because the government was not a party to the agreement governing baseball drug testing, it was not bound by that agreement, and so it was entitled, in the course of a criminal investigation, to seek access even to information that baseball wished to (and had promised players it would) treat as confidential.

Such disappointments occur routinely in other contexts as well. A reporter promises a source confidentiality, but can then be subpoenaed to testify. An employer treats hiring information as private, until it is sought as part of an employment discrimination suit. Or most prosaically, a friend promises another friend secrecy, but then must provide testimony against the latter. Absent a small number of privileges recognized by law--for example, attorney/client, clergy/penitent, spouse/spouse--private promises of confidentiality do not prevent the government from gaining access to information.

A contrary rule would be liable to exploitation by criminals. Gang members would swear each other to secrecy regarding their unlawful activities, and thereby prevent any of their number from turning states' evidence.

Nonetheless, if the law sensibly does not require the government to abide by confidentiality agreements to which it is not a party, it should also be incumbent upon those who offer promises of confidentiality to disclose that these promises are not enforceable. A journalist, for example, can at most promise that she will go to jail rather than divulge a source's identity, and of course, the further promise of willingness to go to jail is not legally enforceable.

The mystery in the Balco case is how sophisticated parties with good legal counsel did not anticipate the peril the 2003 regime created for players and, ultimately, for the game.