The MLB Player’s Association (MLBPA), yesterday asked a federal appeals court to overturn a December 2006 ruling to allow investigators in the BALCO investigation to use the names and urine samples of more than 100 players who tested positive for performance enhancing drugs. At the time of the seizure from two separate drug testing facilities, thousands of records in what has been labeled the “Tracey Directory” were also seized.
As the appeals court ruling (United States v Comprehensive Testing) at the time outlines:
[A] CDT director finally identified a computer directory containing all of the computer files for CDT's sports drug testing programs. This directory, labeled by its original compiler as the "Tracey" directory, contained numerous subdirectories and hundreds of files. Seeing this, Agent Abboud recommended copying the entire directory for off-site analysis, because of the time and intrusiveness involved in searching the voluminous directory on site. Knowing that the warrant required them to rely upon the advice of a computer analyst-here the advice of Computer Investigative Specialist Agent Joseph Abboud-agents copied the directory and removed the copy for later review at government offices.
The ruling then goes on to say that:
Agent Novitzky reviewed with CDT directors the evidence seized during the search. The documents seized included a twenty-five-page master list of all MLB players tested during the 2003 season and a thirty-four-page list of positive drug testing results for eight of the ten named BALCO players, intermingled with positive results for twenty-six other players.
Collectively bargained as part of the 2003-2006 Basic Agreement, the test samples that BALCO investigators seized were part of a 2003 “survey test” whereby MLB and the MLBPA agreed if 5% or more of those tested came up positive for steroids, mandatory testing would take place beginning in 2004. The results of the testing were to remain confidential.
The case has large implications into how the Fourth Amendment is interpreted in the electronic age, and set case law for what is deemed reasonable search and seizure (for more, read Maury Brown’s article on Baseball Prospectus: The Fourth Amendment, the MLBPA and the BALCO Investigation).
As reported by the AP:
"If the majority's decision is allowed to stand, it will create circuit law giving the government carte blanche to use a warrant for some piece of data on a computer as the pretext for seizing the entire computer and perusing its contents," attorneys for the league and lab wrote.