Fourth Amendment the Loser in BALCO Ruling


A recent ruling of the U.S. Court of Appeals for the 9th Circuit is a win for Major League Baseball players whose drug-testing records must now be returned to them after they were improperly seized in a 2002 federal steroids probe.

But it’s not a win for Fourth Amendment values.

In a September 13, 2010, en banc ruling, the appeals court took a major step away from an endorsement of the fairly strict guidelines for government searches and seizures of electronic data that it had handed down in the same case last year.

After this rehearing by the full court, which had also handed down the 2009 opinion, the guidelines, which are intended to apply to broad searches for electronic data in the future, became merely a nonbinding concurring opinion rather than part of the majority opinion by Chief Judge Alex Kozinski.

Only five judges, including Kozinski, signed on to the opinion, as opposed to eight who had endorsed it a year ago.

The case grew out of the federal investigation of Bay Area Lab Co-operative (BALCO) in 2002. At that time, Major League Baseball players had agreed to submit to anonymous testing for steroids. When the government seized the records of an independent drug-testing company known as Comprehensive Drug Testing, it ended up with electronic data on more than 100 players. Some of those names were leaked to the public.

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