The SDFLA Blog is dedicated to providing news and notes regarding federal practice in the Southern District of Florida. The New Times calls the blog "the definitive source on South Florida's federal court system." All tips on court happenings are welcome and will remain anonymous. Please email David Markus at dmarkus@markuslaw.com
Thursday, August 27, 2009
Judge Kozinski champions right to privacy in computers
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.
My former law-school classmate, Professor Orin Kerr, has been railing on the decision over at the Volokh Conspiracy. Professor Kerr calls the opinion "breathtaking"** and says that it is light on citations to authority. He goes so far as to say: "This is the most free-wheeling, 'look ma no hands' legal decision I've read in a long time."
I think Kerr has got it all wrong here and that the en banc 9th Circuit has got it right. Computer searches are inherently different than any other type of search. And by the very nature of the search, a search warrant for any type of digital information -- no matter how discreet -- will lead to a search of the entire computer. Nowadays, there is nothing more private than a computer, not even your home. The old 4th Amendment analysis plainly hasn't been working with searching computers. And finally, one court had the courage to say so.
I know this isn't Scalia-Dershowitz, but I challenge my old friend Orin to a debate on whether this case was correctly decided. We can do it in blog posts or email or whatever. I hope he accepts. My first question to the good professor is whether he would agree that computer searches are inherently different than any other kind of search.
*Isn't it interesting that Kozinski wrote this opinion. Remember that he's the guy who had the contents of his computer publicly disclosed.
**Interestingly, the same word was used to describe the government's position: "Judge Thomas, too, in his panel dissent, expressed frustration withthe government’s conduct and position, calling it a 'breath-taking expansion of the ‘plain view’ doctrine, which clearly has no application to intermingled private electronic data.' Comprehensive Drug Testing, 513 F.3d at 1117."
Wednesday, August 26, 2009
$$$$
Miami-Dade Circuit Judge John Schlesinger looks like he could play a judge on TV. Good looking, with a full shock of iron-gray hair and a granite jaw, Schlesinger is telegenic. But it’s his wife, Marilyn Milian of “The People’s Court,” who’s the television judge, and that helps explain why Schlesinger reported a net worth of $7.18 million, including a $2.7 million Coral Gables home, $1.8 million in the bank and a $95,000 Aston Martin sports car.
So DBR peeps, is the federal judge list coming next?
Tuesday, August 25, 2009
Should judges reject agreed to plea agreements?
The issue has come up again, this time out of the district. This time some (alleged?) crooked judges agreed to plead guilty in exchange for a particular sentence agreed to by the prosecutor. The federal judge rejected the deal in this order, in part because of the "scandalous conduct" of the judges.
What say you, readers? Are you persuaded by the court's reasoning? Should judges be permitted to reject the deals made by the parties to the lawsuit?
Monday, August 24, 2009
Bueller, Bueller, Bueller....
Is there a better comedy than Ferris Bueller's Day Off?
Talk to me people. What's going on in Federal Court this week? Is it just going to be more UBS postings...
Summer's over -- there's gotta be something good going on.
You know it's slow when SFL is comparing Tom Julin to Kingpin and Rumpole is already doing football posts. BTW guys, check out this article -- anonymous bloggers are being outed. And is it me, or is it wrong to put someone (this time Richard Hatch) in jail for giving an interview while at a halfway house?
There are times, however, when it's better to just keep quiet.