from Wired.com

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Obama Wants Computer Privacy Ruling Overturned

The Obama administration is seeking to reverse a federal appeals court decision that dramatically narrows the government’s search-and-seizure powers in the digital age. Solicitor General Elena Kagan and Justice Department officials are asking the 9th U.S. Circuit Court of Appeals to reconsider its August ruling that federal prosecutors went too far when seizing 104 professional baseball players’ drug results when they had a warrant for just 10. The 9th U.S. Circuit Court of Appeals’ 9-2 decision offered Miranda-style guidelines to prosecutors and judges on how to protect Fourth Amendment privacy rights while conducting computer searches. Kagan, appointed solicitor general by President Barack Obama, joined several U.S. attorneys in telling the San Francisco-based court Monday that the guidelines are complicating federal prosecutions in the West. The circuit, the nation’s largest, covers nine states: Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington. “In some districts, computer searches have ground to a complete halt,” the authorities wrote. “Many United States Attorney’s Offices have been chilled from seeking any new warrants to search computers.” (.pdf) The government is asking the court to review the case with all of its 27 judges, which it has never done. If the court agrees to a rehearing, a new decision is not expected for years, and the August decision would be set aside pending a new ruling. Either way, the U.S. Supreme Court has the final say. The controversial decision, which the government said was contrary to Supreme Court precedent, outlined new rules on how the government may search computers. (.pdf) click to read the rest

"the wisdom of the wise will perish, the intelligence of the intelligent will vanish."

The feds overreached in this case. They had warrants for 10 names, and took 104. Then the names were leaked, with the leaks almost certainly involving one or more federal agents in illegal activity.

Computer searches are an evolving area of 4th Amendment law; it's a new arena, and no one is quite sure how to navigate it. It's taken decades to figure out how to apply the 4th Amendment to automobiles (an area of the law that continues to evolve even now), and I suspect it will take decades to figure out how to apply it to computer searches.

The 9th Circuit, which issued the ruling Obama is challenging, is quite liberal, and is often overruled by the Supreme Court. The challenged decision apparently sets up a complex system of 4th Amendment rules that have "agents, prosecutors, and magistrate judges all scratching their heads trying to figure out what to do," at least according to one commentator (see below). On the other hand, because of the well-publicized leaks, the feds have somewhat "unclean hands" when it comes to this case, which could hurt their efforts on appeal.

Anyhoo, I think the battle has only just begun. I foresee courts wrestling with computer search issues for decades. It's going to take time and experience to strike the right balance.

Commentary from Volokh, a legal blog that tilts slightly to the right of center, here: http://volokh.com/2009/11/05/ninth-circuit-considers-super-en-banc-for-comprehensive-drug-testing/

And here: http://volokh.com/2009/11/24/doj-files-brief-supporting-super-en-banc-in-cdt/