Libertarian ping! To be added or removed from my ping list freepmail me or post a message here.
Posted on 01/04/2007 9:19:54 PM PST by neverdem
When federal agents searched the offices of Comprehensive Drug Testing in Long Beach, California, on April 8, 2004, they officially were looking for the records of 10 baseball players suspected of buying steroids from the Bay Area Laboratory Co-Operative (BALCO), a sports nutrition center whose owners had been charged with illegal steroid distribution. They left with information that went far beyond what their warrant described, including data on 1,200 baseball players and almost 3,000 computer files unrelated to Major League Baseball drug testing.
The U.S. Court of Appeals for the 9th Circuit recently told the government it may keep these records because they were "intermingled" with the records of the 10 original targets. But you needn't worry about the privacy of your electronic records, as long as you're confident they haven't been hanging with the wrong crowd.
Then again, no one can be sure of that. According to the rule endorsed by the two-judge majority, wrote dissenting 9th Circuit Judge Sidney Thomas, the government "may seize, retain, and view all confidential records in any electronic database on which private data responsive to a warrant resides." In effect, he said, this decision "removes confidential electronic records from the protections of the Fourth Amendment."
The majority said people who object to a seizure after the fact can ask a magistrate to review the information and decide whether there is probable cause to retain it. But the magistrate can let the government keep records outside the scope of the warrant if he decides they cannot be removed "without creating new documents" or "without distorting the character of the original document."
More important, by letting the government seize first and answer questions later, this approach puts the burden of preventing an unreasonable seizure on people who may not even realize their records have been taken. In this case, along with information on baseball players, whose union challenged the seizure, the government took the medical records of players in 13 other sports organizations, participants in three athletic competitions, and employees of three businesses.
The baseball dragnet is bad enough, especially since management promised the players these drug tests, conducted in 2003, would remain anonymous and confidential. The tests were aimed at estimating the prevalence of steroid use in Major League Baseball, and they were not supposed to be the basis for disciplinary action, let alone criminal investigation.
Yet the government already has used information outside the original warrant to obtain additional warrants aimed at the records and urine samples of every baseball player who tested positive for steroids in 2003. The vast majority of these 100 or so players were not even suspected of involvement with BALCO.
The government planned a wide search from the beginning. It initially obtained a grand jury subpoena demanding drug testing data for all Major League Baseball players. After Comprehensive Drug Testing and the players' union objected, it switched to a much narrower subpoena focused on 11 players. When they said they planned to challenge that subpoena as well, it sought a search warrant from a different court.
Federal agents chose not to isolate the information described in the warrant by performing an on-site database search. They also declined to submit the records to a magistrate for redaction, an approach suggested by the drug testing company (and favored by Judge Thomas).
As a result, the government got what it wanted without having to ask for it. And then some: It has left open the possibility of using drug testing data on people who are not even baseball players, let alone baseball players associated with BALCO, to launch new investigations—of steroid use in the National Hockey League, for example.
The 9th Circuit's loose treatment of "intermingled" data allows investigators to peruse the confidential electronic records of people who are not suspects, hoping to pull up something incriminating. It replaces a particularized warrant based on probable cause with a fishing license.
© Copyright 2007 by Creators Syndicate Inc.
Ping
I sit out nearly all the Doper Wars posts- too much jeering, flaming, and weird circular "logic"- smoke dope, don't smoke it, I really don't care as long as you leave me alone and don't harm anyone else.
But I'll just tell you this- when I ran my wrecker service in the nineties, I had to be the Drug Control Officer of...
myself.
Get it? The FAA Reauthorization Act of 1995 deregulated Wrecker companies ( sounds good, right? Wrong! ) so the Feds- who formerly had authority, but no personnel or funding, got replaced by State agencies, who had both money and personnel to do so.
I had to write myself letters, telling myself not to use drugs, take myself to a medical lab and whiz in a bottle, and then rat on myself if I tested positive.
But, since I was The Drug Control Officer, of... myself... would I turn myself in, or just write a strongly-worded letter?
Never could figure that one out...
If every professional athlete in the United States used steroids, I wouldn't give a flying FReep.
Libertarian ping! To be added or removed from my ping list freepmail me or post a message here.
I don't think the anti-steroid "craze" is going to do any damage the Drug War already hasn't.
The War On Some Drugs has done enough damage to the Fourth Amendment. IMHO, this is a stake through its heart.
I'd be interested in your thoughts on this.
Well, I think the data may be seized and used against the defendants mentioned in the warrant. If the records contain other names and results, so be it.
This would be similar to the police requesting the phone records of a suspect to see if he called the victim -- your phone number may also show up if he called you. Irrelevant, yes, but the phone record needs to be preserved intact.
Now, as to the government actually taking action against the other steroid users uncovered by the search warrant, that's an issue I continue to have problems with. Let's say the police have a valid warrant to search your home because they suspect you of a crime, say a bank robbery. You're innocent (of course you are), but during the search they find marijuana (you naughty boy).
In my mind, they should ignore it -- it's not part of the warrant and they never would have found it otherwise. Legally, of course, they are not allowed to ignore it and you must be charged.
Unfortunately, the same principle applies here -- the police cannot ignore evidence of illegal activity -- in this case illegal drug (steroid) use.
"The 9th Circuit's loose treatment of "intermingled" data allows investigators to peruse the confidential electronic records of people who are not suspects, hoping to pull up something incriminating. It replaces a particularized warrant based on probable cause with a fishing license."
You know what this sounds like? A cop pulling over a suspicious vehicle for not signalling a lane change. A Mickey-Mouse charge, but it allows him an opportunity to go fishing. Who knows what he'll find.
The point to me is that baseball's steroid problem is baseball's steroid problem, and the gov't should stay out of it. This is easy enough, just make all players sign agreements that they waive all medical privacy rights to the MLB.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.