IS BASEBALL DRUGS RULING A FOURTH-AMENDMENT FOUL?

Major League Baseball has found itself embroiled in a federal
investigation into whether some of its biggest stars used
performance-enhancing drugs to smash home runs in record numbers. But
civil-liberties advocates, as well as unions, worry that a recent
legal ruling in the case will reach far beyond the diamond and give
the government broad search-and-seizure powers in the digital age.

At the heart of the case is how much freedom the government has to
pursue crimes discovered in electronic files while searching for
evidence against other people. It turns on just how much protection
the Fourth Amendment, written in the 18th century to stop
unreasonable searches, affords information in a 21st-century computer
database about people other than those targeted by investigators.

"The Supreme Court has never applied the Fourth Amendment to
computers," says Orin Kerr, an associate law professor at George
Washington University. "The federal courts of appeals are beginning
to decide a bunch of cases: in 2006, there were 20 or 30 in the broad
area of how the Fourth Amendment applies to computers. But each case
is very fact-specific and narrow, so the law remains pretty murky."

A three-judge panel of the Ninth Circuit Court of Appeals in San
Francisco late last month upheld the government's power to seize
computer files from two laboratories that performed mandatory drug
tests on major leaguers, including files of professional hockey
players and other nonsports patients tested by the labs.

The seizures were part of a federal investigation that began in 2002
into the Bay Area Laboratory Cooperative, which supplied sports stars
with performance-enhancing drugs meant to escape detection. The San
Francisco Chronicle has reported that baseball superstar Barry Bonds,
who has denied knowingly using such substances, is under
investigation for perjury connected to his testimony in the Balco case.

Prompted by the investigation and congressional hearings, baseball
team owners called for testing all players for steroid use.
Baseball's players' union eventually agreed after initial resistance,
on the condition that the results would remain secret and used only
to determine the extent of the problem.

Players submitted to tests in 2003 at two different laboratories, one
in California and the other in Nevada. Later that year, federal
investigators, who had zeroed in on 10 baseball players, began asking
for the results. Armed with a search warrant for information on the
10, federal agents seized a large number of computer files containing
the test results. Not only did they get test results for the 10 they
were investigating, they found the names of more than 100 other
baseball players who had positive tests for steroid use. A prosecutor
told the Ninth Circuit the government would reserve the right to
continue investigating those additional players.

"We were authorized specifically by the warrant to search every
single file in all of their computers," Assistant U.S. Attorney Erika
Frick said. "We took only one directory. We were authorized to search
every one of those files."

The Major League Baseball Players Association and one of the labs
have fought the government's actions, and three lower courts -- two
in California and one in Nevada -- ruled in their favor, saying the
government overstepped its authority in seizing more files than those
pertaining to the 10 players it originally was investigating. A key
question was whether the government could act on information it took
from the labs against the players not named in the search warrant.
One district court judge went so far as to ask, "What happened to the
Fourth Amendment? Was it repealed somehow?"

The Fourth Amendment requires authorities prove to a judge that there
is evidence that gives them probable cause to search a specific
place, as well as list the persons or things to be seized.

"The reason for the warrant requirement is to make clear, before the
police seize records, the purpose of the search and the scope of the
search," says Marc Rotenberg, executive director of the Electronic
Privacy Information Center in Washington, D.C., and an adjunct
professor who teaches information privacy law at Georgetown
University. "It should not be viewed as unbounded authority to gather
all data that is available."

Courts have often struggled to define which searches and seizures are
"unreasonable." For instance, authorities are allowed to seize
evidence that lies in plain sight, even in if they lack a warrant. In
a less complicated criminal case, the doctrine allows, for example,
police with a search warrant for drugs to seize an illegal gun they
might see on top of a table.

"Normally we all know agents can look in a closet," says Fordham
University criminal law professor Dan Richman. "This is a really big
and interesting closet."

The government argues it needed to cast a wide net, gathering large
bunches of files to make sure to find all pertinent evidence, not
merely believing the labels on files in a computer directory. If
during that check prosecutors came across evidence of a crime, they
could keep it and use it.

Attorneys for the players are in the process of petitioning for a
hearing by a 15-judge panel of the Ninth Circuit, which can reverse
the three-judge panel.

The MLB Players Association says the Ninth Circuit ruling will hand
the government unprecedented entry to private information of large
numbers of people accused of no crimes. The government seized files
on National Hockey League players and employees of several other
sports organizations and businesses unrelated to the investigation.
The hockey players' union says it did not know of the governments'
actions until Ninth Circuit judge Sidney Thomas issued his dissent.
The NHL Players Association supports the baseball union's stance and
is examining legal options.

Addressing concerns that the ruling could open the way for the
government to prospectively rummage through the files of people
against whom there is no hint of evidence, Judge Diarmuid
O'Scannlain, writing for the majority, suggested a magistrate examine
and separate pertinent computer evidence from unrelated material. New
York-based white-collar defense attorney Andrew Hruska says he likes
that idea in principle but questions its applicability in the real
world. Pass on 20 gigabytes of data to sift through, he says, and
"you will get a very frosty stare from a magistrate."