Following Bush-era argument, Obama attorneys push to weaken search protections

By Gavin Dahl
Sunday, November 29th, 2009 -- 8:08 pm

Even though a Bush-era request to conduct blanket searches of computer files was rebuked by judges, the Obama administration is now pushing to have the decision reversed, according to court documents filed the week of Thanksgiving.

U.S. Solicitor General Elena Kagan, an Obama appointee, and twenty other government attorneys submitted a brief to the Ninth US Circuit Court of Appeals, making a very extraordinary request.

Federal prosecutors went too far when they seized the drug test results of 104 pro baseball players, according to a 9-2 "en banc" panel decision in August by the 9th US Circuit Court of Appeals. The ruling included guidelines for computer search conduct designed to protect Fourth Amendment privacy rights, in the style of Miranda rights.

Chief Judge Alex Kozinski wrote at the time that the government "must maintain the privacy of materials that are intermingled with seizable materials, and … avoid turning a limited search for particular information into a general search of office file systems and computer databases.”

In 2006, the 9th Circuit initially sided with the Bush administration against the Major League Baseball Players Association in a 2-1 decision.

Back in 2003, the warrant in the hands of the prosecutors allowed them to search urinalysis records of ten pro baseball players at a Long Beach drug-testing facility. They claimed the information on other players found in a Microsoft Excel spreadsheet was in plain sight, and therefore lawful. But the Court of Appeals argued agents could have selected, copied and pasted only the rows listing the specific players named in the search warrant.

Instead they scrolled to the right side of the spreadsheet to peek at the test results of each player. The names of four players not linked to the warranted BALCO investigation were later leaked to The New York Times. In the public eye, power-hitters David Ortiz, Manny Ramirez, Alex Rodriguez and Sammy Sosa may never scrub clean the taint. Sosa will be eligible for the Hall of Fame in 2013, along with controversial star Barry Bonds.

The player's union accused The Times of breaking the law. "The leaking of information under a court seal is a crime," he said in a statement. "The active pursuit of information that may not lawfully be disclosed because it is under court seal is a crime."

Michael Schmidt, the reporter, insists he did nothing wrong, "It is the choice of the source to talk. I believe it is legal and ethical for me to ask questions of people who may be covered by court orders."

During the slow news week of Thanksgiving the Obama administration took action, seeking to reverse the 3-month old decision. Wired Magazine and libertarians had applauded the dramatic reductions to the government's search-and-seizure powers, but the government now claims "computer searches have ground to a complete halt" in some districts.

Inside a 27-page brief submitted to the San Francisco-based court Nov. 23 (and made available on the Wired Magazine website) Solicitor General Kagan and twenty other undersigned government attorneys insist the 9th Circuit Appeals judges must "withdraw the en banc panel's decision." In other words, throw out the 11-judge ruling and review the case again with all 27 of its judges, an unprecedented request.

"The United States is mindful that this Court has never granted full court en banc," the brief states. "Indeed, the federal government has never asked the Court to do so. But the broad issues unnecessarily addressed in the en banc panel’s opinion are of surpassing importance and compel that extraordinary action."

The court said rather than copy an entire drive, the government should cull the specific data described in its search warrant. Otherwise, use an independent third party to comb through files under court supervision, providing nothing else to government agents. So, which Fourth Amendment protections are unnecessary?

The government is pointing to a nauseating rape case to argue investigators are now the ones in handcuffs. "Agents did not obtain a warrant to search the suspects' computers," the government wrote, "because of concerns that any evidence discovered about other potential victims could not be disclosed by the filter team."

After the Ninth Circuit Court of Appeals, the last avenue available to the solicitor general would be a review from the Supreme Court.