Legal Commentary

?Cuffing Digital Detectives?

By Orin Kerr

The latest issue of National Journal has this interesting article on United States v. Comprehensive Drug Testing, 579 F.3d 989 (9th Cir. 2009), the computer search case that may go super en banc.

As far as I know, no federal court has agreed with CDT in a written opinion since the decision came down in August. The only federal judge to have discussed CDT in any depth is Chief Judge Woodcock of the District of Maine, who noted that CDT is inconsistent with First Circuit precedent. See United States v. Farlow, 2009 WL 4728690 (D. Me., Dec. 3, 2009). Judge Woodcock then dropped a footnote offering several reasons why he thinks CDT is misguided:

From this Court?s perspective, CDT creates more problems than it solves. . . . The CDT protocols impose extraordinary precautions against police misconduct for all applications for a warrant to search a computer, assuming misconduct will be the rule, not the exception. There is no evidence that police disobedience of search warrant limitations is so widespread to compel such onerous pre-issuance procedures, and at the very least the more traditional remedies should be tried first.

Moreover, CDT requires the issuing judicial officer to ?insert[ ] a protocol for preventing agents ... from examining or retaining any data other than that for which probable cause is shown.? CDT, 579 F.3d at 1000. Even the most computer literate of judges would struggle to know what protocol is appropriate in any individual case, and the notion that a busy trial judge is going to be able to invent one out of whole cloth or to understand whether the proposed protocol meets ill-defined technical search standards seems unrealistic.

Finally, to require that the Government forswear the plain view doctrine is, in the Court?s view, an extreme remedy better reserved for the unusual, not common case. . . . The judicial directive to forswear in advance the plain view doctrine, placed in a different context, is equivalent to demanding that a DEA investigative team engaged in the search of a residence for drugs promise to ignore screams from a closet or a victim tied to a chair. To require the government before every computer search to forswear the plain view doctrine, which itself has its own constraints, seems unwise.

Full post as published by The Volokh Conspiracy on December 20, 2009 (boomark / email).