Bowing to the Obama administration, a federal appeals court Monday gutted its own decision that had dramatically narrowed the government's search-and-seizure powers in the digital age.

The 9-2 ruling by the 9th U.S. Circuit Court of Appeals nullifies Miranda-style guidelines the court promulgated last year that were designed to protect Fourth Amendment privacy rights during court-authorized computer searches. Supreme Court Justice Elena Kagan, as solicitor general last year, had urged the court to reverse itself amid complaints that federal prosecutions were being complicated, and computer searches were grinding to a halt, because of the detailed guidelines.

The original ruling required the government to cull specific data described in the search warrant, rather than copy entire hard drives. When that's not possible, the feds were advised to use an independent third party under the court's supervision, whose job it would be to comb through the files for the specific information, and provide it, and nothing else, to the government. The ruling said judges should "deny the warrant altogether" if the government does not consent to such a plan in data-search cases.

The ruling came in a case that dates to 2004, when federal prosecutors probing a Northern California steroid ring obtained warrants to seize the results of urine samples of 10 Major League Baseball players at a Long Beach, California, drug-testing facility. The players had been tested as part of a voluntary drug-deterrence program implemented by Major League Baseball.

Federal agents serving the search warrant on the Comprehensive Drug Testing lab wound up making a copy of a directory containing a Microsoft Excel spreadsheet with results of every player that was tested in the program. Then, back in the office, they scrolled freely through the spreadsheet, ultimately noting the names of all 104 players who tested positive.

The government claimed the right to prosecute the Major League Baseball players or use the the test results that weren't sought in the warrant, arguing that the information was lawfully found in "plain site," just like marijuana being discovered on a dining room table during a court-authorized weapons search of a home

The San Francisco-based appeals court threw out the evidence beyond the originally sought players, and in the landmark decision last year, set out specific steps the government should follow to keep a search warrant for computer data from turning into a license for a fishing expedition.

Monday's 58-page ruling (.pdf) in a rehearing of the case still excludes the evidence, and reiterates that law enforcement cannot use seized materials in a computer search that are beyond the scope of the warrant. But the ruling omits the detailed guidance to which the Obama administration had objected.

Instead, the judges urged "greater vigilance on the part of judicial officers in striking the right balance between the government's interest in law enforcement and the right of individuals to be free from unreasonable searches and seizures."

Matthew Parrella, the government's prosecutor in the case, declined comment on whether the government would ask the Supreme Court to review the decision. On Parrella's side were the two dissenting judges, Sandra S. Ikuta and Consuelo M. Callahan.

They wrote that their colleagues' decision does not explain "why the Supreme Court's case law or our case law dictates or even suggests that the plain view doctrine should be entirely abandoned in digital evidence cases."

Photo: Rosie O'Beirne/Flickr

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