15. Comprehensive Drug Testing Case
Facts / Background
BALCO baseball steroids investigation, grand
jury subpoena and search warrants for
records and samples at a testing company
Motions to quash, eventual appeal to Ninth
Circuit en banc
16. Comprehensive Drug Testing Case
“The pressing need of law enforcement for
broad authorization to examine electronic
records . . . creates a serious risk that
every warrant for electronic information will
become, in effect, a general warrant,
rendering the Fourth Amendment
irrelevant.”
“Seizure of, for example, Google’s email servers to
look for a few incriminating messages could jeopardize
the privacy of millions.”
17. Comprehensive Drug Testing Case
Kozinkski concurrence: details procedures
courts should require in warrants and
subpoenas for computer information
Bea concurring in part: Kozinski’s
procedures are advisory
Callahan concurring in part: Kozinski’s
procedures are not joined by a majority of
the en banc court and aren’t binding;
further they are overbroad and
unreasonably restrictive
21. Scale of Requests (Microsoft)
IMG SRC = https://www.microsoft.com/en-us/corporate-responsibility/lerr
22. Scale of Requests (Microsoft)
IMG SRC = https://www.microsoft.com/en-us/corporate-responsibility/lerr
23. Scale of Requests (Facebook)
IMG SRC = https://transparency.facebook.com/government-data-requests
24. Scale of Requests (Facebook)
IMG SRC = https://transparency.facebook.com/government-data-requests
25. Scale of Requests (Facebook)
IMG SRC = https://transparency.facebook.com/government-data-requests
(Jan – June 2018)
26. Google Privacy Policy
We will share personal information with companies, organizations or
individuals outside of Google if we have a good-faith belief that access,
use, preservation or disclosure of the information is reasonably necessary
to:
meet any applicable law, regulation, legal process or enforceable
governmental request.
enforce applicable Terms of Service, including investigation of potential
violations.
detect, prevent, or otherwise address fraud, security or technical issues.
protect against harm to the rights, property or safety of Google, our
users or the public as required or permitted by law.
27. SCA Extraterritoriality
U.S. v. Microsoft and the CLOUD Act
“A [service provider] shall comply with the
obligations of this chapter to preserve,
backup, or disclose the contents of a wire or
electronic communication and any record or
other information pertaining to a customer or
subscriber within such provider’s
possession, custody, or control, regardless
of whether such communication, record, or
other information is located within or outside
of the United States.”
31. Carpenter v. U.S. (2018)
Roberts Majority
Third party doctrine does not apply to historic cell site
information: “seismic shifts in digital technology” make
tracking much easier
Warrant with probable cause required
32. Carpenter v. U.S. (2018)
Kennedy dissent (with Thomas and Alito)
Third party doctrine should apply even though new
technology
“A person’s movements are not particularly private.”
Cell site records “disclose a person’s location only in a
generalized area.”
Cell phones also make committing crimes easier
33. Carpenter v. U.S. (2018)
Alito dissent, with Thomas
Leave the third party doctrine intact and let Congress
address any particular issues
Gorsuch dissent
Fourth Amendment ties to a property interest and the third
party doctrine should be overturned entirely
