When the 9th Circuit, courtesy of Judge Alex Kozinski, decided United States v. Comprehensive Drug Testing , they may well have brought the law into the digital age for the first time.  For real.  Orin Kerr at Volokh Conspiracy has done an extraordinary series of posts about the case, its implications, its conflicts, and they are a must read for every criminal defense lawyer.

Being ever helpful, Judge Kozinski has even summarized the new rule:

When the government wishes to obtain a warrant to examine a computer hard drive or electronic storage medium in searching for certain incriminating files, or when a search for evidence could result in the seizure of a computer, see, e.g., United States v. Giberson, 527 F.3d 882 (9th Cir. 2008), magistrate judges must be vigilant in observing the guidance we have set out throughout our opinion, which can be summed up as follows:

1. Magistrates should insist that the government waive reliance upon the plain view doctrine in digital evidence cases. See p. 11876 supra.

2. Segregation and redaction must be either done by specialized personnel or an independent third party. See pp. 11880-81 supra. If the segregation is to be done by government computer personnel, it must agree in the warrant application that the computer personnel will not disclose to the investigators any information other than that which is the target of the warrant.

3. Warrants and subpoenas must disclose the actual risks of destruction of information as well as prior efforts to seize that information in other judicial fora. See pp. 11877-78, 11886-87 supra.

4. The government’s search protocol must be designed to uncover only the information for which it has probable cause, and only that information may be examined by the case agents. See pp. 11878, 11880-81 supra.

5. The government must destroy or, if the recipient may lawfully possess it, return non-responsive data, keeping the issuing magistrate informed about when it has done so and what it has kept. See p. 11881-82 supra.

For anyone in this business, the sweeping breath of this approach is just astounding, which brings me to the only aspect of this decision that Orin has yet to discuss.  A while back, we had a disagreement about whether the 4th Amendment doctrine developed over the past couple of centuries was better applied to  new technology, whether by analogy or directly, or whether the courts needed to develop a new approach to evidence that fell outside the scope of anything the framers, or the courts of the past, had ever imagined would exist.

My argument was that we needed a new approach, largely because the old one is riddled by exceptions that have long ago swallowed the rule, and because the developed law monumentally fails to offer any meaningful protection.  Orin took the approach that we would do better to apply existing doctrine, which he called his “technology neutral approach.”

While I wouldn’t go so far as to say that this decision proves Orin wrong, I would take the position that Judge Kozinski and the en banc 9th has taken my side in the argument, that the old paradigm fails to satisfactorily address protecting the privacy of the individual when we leave the physical aspects of the search in the dust and focus instead on our digitalia, the true content to be protected. 

But before we get too excited by this extraordinary decision, which would likely render every computer search every done unconstitutional, Orin makes a critical point in noting that it may well conflict with new Federal Rule of Criminal Procedure 41, which creates a process that conflicts with the Kozinski rules at critical junctures, and that the Comprehensive Drug Testing decision, if rendered pursuant to the Circuit’s supervisory powers authority rather than as a 4th Amendment doctrinal decision, would be trumped by the new rule, effective December 1st.

Still, that the 9th Circuit has now challenged the tail that wags the dog, at minimum there’s a crack in the door of old school search and seizure doctrine, and now a hope that a little sun will shine through that crack.  Given the significance of digital search for the future, let’s hope that this decision at least gives rise to some thought before the federal courts eviscerate all protections under some new “computer exception” rule that exposes our innermost thoughts to the nearest  flatfoot with a flash drive.  It’s the content, not the container.