Jacob Sullum

Yet the government already has used information outside the original warrant to obtain additional warrants aimed at the records and urine samples of every baseball player who tested positive for steroids in 2003. The vast majority of these 100 or so players were not even suspected of involvement with BALCO.

The government planned a wide search from the beginning. It initially obtained a grand jury subpoena demanding drug-testing data for all Major League Baseball players. After Comprehensive Drug Testing and the players' union objected, it switched to a much narrower subpoena focused on 11 players. When they said they planned to challenge that subpoena as well, it sought a search warrant from a different court.

Federal agents chose not to isolate the information described in the warrant by performing an on-site database search. They also declined to submit the records to a magistrate for redaction, an approach suggested by the drug-testing company (and favored by Judge Thomas).

As a result, the government got what it wanted without having to ask for it. And then some: It has left open the possibility of using drug-testing data on people who are not even baseball players, let alone baseball players associated with BALCO, to launch new investigations -- of steroid use in the National Hockey League, for example.

The 9th Circuit's loose treatment of "intermingled" data allows investigators to peruse the confidential electronic records of people who are not suspects, hoping to pull up something incriminating. It replaces a particularized warrant based on probable cause with a fishing license.

Jacob Sullum

Jacob Sullum is a senior editor at Reason magazine and a contributing columnist on Townhall.com.
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