Thursday, January 04, 2007


" least until this opinion has been issued, no one in the National Hockey League knew..."

Silly me! When I pointed yesterday to the story about the 9th Circuit ruling re: BALCO, steroids, privacy, etc., I said that it wasn't "strictly related to the NHL". Whoops! I just spent some time reading the actual ruling (majority and dissent, 2-1), and this quote from the dissent kind of jumped out at me (p.107):
However, at least until this opinion has been issued, no one in the National Hockey league knew that the government had seized medical records pertaining to its players without a warrant.

This footnote on p.88 is something, too. The dissenting Justice (Thomas) is passing on an exchange from a lower court; that judge was probing what could happen with the data from the seized database that was not subject to the search warrant (i.e. the data that they were theoretically only reviewing to confirm that it wasn't what they were officially looking for):
Court: What if hockey had a subdirectory that had positive results and he clicked on it to make sure it was what it said it was, and by George, that's what it was, what about that?

Counsel: I don't know in checking to make sure it was hockey that didn't happen. If it did happen, I would think that theoretically Agent Novitsky would have the right to either request a search warrant or, I suppose, if you looked at it enough, it's possible that it was obvious, it was plain view, it was other drug use by hockey players. So there might be a legal entitlement for Agent Novitsky to use that and do something with it.

Wow. I don't have much time for America-bashers, but stuff like this moves me to think, "Nice free country you used to have there." This is serious business. The dissent sums up the implications of this quite nicely:
The majority’s holding that the government was entitled to seize all records in the file because the non-Balco drug test results were “intermingled” in the same file puts Americans’ most basic privacy interests in jeopardy. Such a rule would entitle the government to seize the medical records of anyone who had the misfortune of visiting a hospital or belonging to a health care provider that kept patient records in any sort of master file which also contained the data of a person whose information was subject to a search warrant. I agree entirely with Judge Illston’s observation that the implications of approving such behavior are staggering. Under the majority’s holding, no laboratory or hospital or health care facility could guarantee the confidentiality of records.

The way I understand it, the magic words "drugs" or "terrorists" make all other considerations (constitutional or otherwise) secondary, so there you go. Also, the majority also threw in a hearty helping of computer illiteracy. As noted in the dissent:
A relational database provides the perfect vehicle for segregating non-relevant information. However, an inherent feature of a relational database is that data is "comingled." Instead of using the power of a relational database to protect legitimate privacy interests, the majority would adopt a rule discouraging -- if not precluding -- such a use. Under the majority’s approach, the government would be entitled to retain all electronic information if "co-mingled." Given that "co-mingling" is an inherent aspect of electronic databases, this restriction renders the Fourth Amendment a nullity in the electronic context.

But on the other hand, the Fourth Amendment is frequently a hindrance to the government's pursuit of drugs and terrorists, so maybe that's for the best...

So back to hockey, the question now is roughly: Is it possible that NHL players will be subpoenaed before a federal grand jury demanding to know who sold them steroids -- based on the warrantless seizing of their private medical records, and under threat of imprisonment? The correct answer is "Yes, entirely." And if you don't believe me, read the thing yourself. Like most court rulings/opinions, it's (A) a lot of pages but (B) not actually that difficult to follow.


Will the Grand Jury be playing in their predominantly brown home jerseys? And will they celebrate with heil fives all around?
If an NHLer gets sent to Guantanomo Re-Education Camp, will his GM get a long-term injury exemption from the salary cap?

Does this mean that we'll find out if Dick Pound's NHL drug use allegations are true?

Since no one at Gitmo is 'officially' there the GMs will have to eat their salary. If they manage to get a military tribunal then they qualify for the LTIR after their sentencing.

As an American I'm posting anonymously, we recently eliminated the writ of habeas corpus thus I don't want to be labeled an enemy combatant.

As far as our sad state of affairs, you need only know one thing, Inter Arma Enim Silent Leges. Which translates to, in time of war, the law falls silent.

Frankly, I'm surprised you guys haven't been added the axis...

Are you saying we should start building nukes?

Are you saying we should start building nukes?

Maybe India and Pakistan can sell us the plans for one. Since we sold them the fuel for theirs, it seems only fair.

To be fair...we made sure India promised us not to make nuclear weapons before we sold them the CANDU reactor. They promised!

Interesting and disturbing stuff.

While I'm entirely sympathetic to the dissent, the majority did rule that the intermingled data had to be reviewed by a magistrate:

After the magistrate determines which sealed items fall within the search warrant, the government may retain and use such items; all others must be returned to the person or entity searched.

Once the data is returned, any individual covered by the returned data should seek to have legal action or warrants against them quashed.

That said, the plain view argument applied to computer files / relational databases is obviously bunk. But it might also require a Justice who actually uses his/her own computer to de-bunk it.

There's also a middle-path in here for the Supremes to use if they want it. The data was in three places, only one of which was the "Tracey" directory. Using this narrow set of facts, you could rule that because the government had alternative records they could seize that fully met the requirements of the search warrant, those less-intrusive alternatives should have been taken. There would then be no need to decide the broader questions such as whether the seizure of the Tracey directory was permissable.

Don't bother building your own nukes. Just buy a few of ours--we have plenty, and we can't possibly use them all.

another anonymous american

Looks like I'll be prepping for that midnight drive north of 49 sooner than I thought....

Heil Bush.

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