Feds Can Keep MLB Drug Testing Records

Your employer wants you to submit to drug testing but assures you that the results will be kept confidential. Is your privacy protected? Don't count on it.

Baseball players supplied urine samples in 2003 to help Major League Baseball get a handle on the number of players who use steroids.

Baseball players were told the results would be confidential, and each player was assigned a code number to be matched with his name.

A day before the results were to be destroyed, federal agents issued subpoenas compelling production of test results for ten players, including Barry Bonds, who is suspected of fibbing to a grand jury when he denied using steroids. Armed with warrants for the ten test results, agents in 2004 seized the results of tests of about one hundred players, most of whom weren't named in the subpoenas or warrants.

This expanded search didn't bother the Ninth Circuit, which reversed (pdf) two lower court rulings favoring the Players Association that would have required the government to return any test results that weren't described in the warrants. The dissent offers an analysis that's more faithful to players' legitimiate expectations of privacy in their medical records. Here's the concluding paragraph:

In discussions of the alleged use of steroids by baseball players, much is made about “the integrity of the game.” Even more important is the integrity of our legal system. Perhaps baseball has become consumed by a “Game of Shadows,” but that is no reason for the government to engage in a "Prosecution of Shadows.” The district judges were entirely right to order the government to return the thousands of private medical records it wrongfully seized by use of pretext and artifice.
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    Hard to get exercised about... (none / 0) (#1)
    by Gabriel Malor on Wed Dec 27, 2006 at 04:28:47 PM EST
    First, your description of the case is not quite accurate, Jeralyn. The seizure of records in excess of the eleven specific individuals listed was as much the result of CDT refusing to direct investigators to the specific records indicated on the warrant as it was the government's intent. In fact, the warrant specifically gave the investigators the power to search through the computers of the company as advised by a computer specialist.

    This is a case where the Government did exactly the right thing. They applied for a warrant. They had probable cause and they described with particularity the places to be searched and the things to be seized. You want to fault them because a private individual--contrary to law--tried to hinder an investigation?

    The Post is Mine (none / 0) (#2)
    by TChris on Wed Dec 27, 2006 at 04:59:48 PM EST
    First, the post is mine, not Jeralyn's.  Second, a property owner has no obligation to tell the police where to find property identified in a warrant, and the owner's exercise of his right not to supply that information does not constitute obstructing and is not "contrary to law."  Third, the very purpose of the Fourth Amendment is to forbid general searches, and the decision to seize records pertaining to 100 players when the warrant only authorized the police to take records pertaining to 10 or 11 players is a serious and improper expansion of the limited authority conferred by the warrant -- particularly when the records are private medical records.  Finally, whether the agents did the right thing by obtaining a warrant isn't the issue.  They did the wrong thing by seizing records that were not described with particularity in the warrant.

    My bad...and... (none / 0) (#5)
    by Gabriel Malor on Wed Dec 27, 2006 at 05:19:15 PM EST
    Yeah, that was a dumb mistake. My bad, TChris (and apologies to Jeralyn).

    While I agree that the property owner has no obligation to help police execute a warrant to the extent that they do not hinder the search or seizure, in this case the investigators said: "Look, we can take all your computers in and search for what we want, or you could help us out and just direct us to the stuff we've come for." CDT at first refused to help at all, and later, recognizing that the investigators had the authority to search and seize until they had the records, decided to direct the investigators so as to forestall greater intrusion.

    It should be noted, however, that rather than just pull out the eleven records which were the subject of the warrant (and which CDT had already compiled and set aside), CDT pointed at some computers and said "have at it." Are we now to be surprised that in the course of searching, the investigators found other records of steroid users? Sounds a lot like plain view to me. They had the right to be where they were when they found the other incriminating records.


    Lil snark, somewhat agree (none / 0) (#3)
    by demohypocrates on Wed Dec 27, 2006 at 05:07:53 PM EST
    Your employer wants you to submit to drug testing but assures you that the results will be kept confidential. Is your privacy protected? Don't count on it.

    So should a federal criminal investigation play second fiddle to a private employment agreement?  Maybe my employer and I can agree that I am not responsible for federal income taxes.

    Snark aside, I agree that the record retained are beyond the scope of the warrant and thus violative of the fourth.

    Not cool.... (none / 0) (#4)
    by kdog on Wed Dec 27, 2006 at 05:09:21 PM EST
    Where is MLB?  As the employer, they are responsible for the company they hired to do testing.  If they promised confidentiality, and sat idly by as the IRS seized piss test records, I hope the union sues the pants off of them.

    And shame on Quest Diagnostics....tyranny profiteers if you ask me.  Where were they as the govt. stuck its nose into the contents of the bodily waste of free men?  

    Waste of Time? (5.00 / 1) (#7)
    by peacrevol on Thu Dec 28, 2006 at 11:45:19 AM EST
    Does our federal govt have nothing better to do than to herrass baseball players about whether or not they used steroids? Not only is it really none of their business, but is there nothing more urgent out there than steroid use among pro athletes? Is this all a part of the war on terror? Are we worried that MLB players all hopped up on steroids are going to terrorize the nation? I mean if we really are supposed to be fighting all this high priority $h!t, how does steroids in baseball get up on the list? It seems absolutely rediculous to me that my tax dollars are going towards a huge investigation about whether some athletes used steroids or not.

    I couldn't agree more. (none / 0) (#8)
    by Kewalo on Thu Dec 28, 2006 at 05:55:55 PM EST
    This is the kind of thing we need to keep in the back of our minds everytime some dolt in congress tries to tell us that they will protect our privacy.

    What damn privacy. I can imagine what the bill is for this investigation. It's infuriating.


    Fibbing? (none / 0) (#6)
    by Quaker in a Basement on Wed Dec 27, 2006 at 10:14:31 PM EST
    "...Barry Bonds, who is suspected of fibbing to a grand jury..."

    "Fibbing" to a grand jury? You're kidding, aren't you?

    You "fib" to your mother when she asks who ate all the cookies. You "fib" to your teacher to get a hall pass to go to the bathroom but cut class with your friends.

    When it's a grand jury, it's not "fibbing" anymore. They have a completely different word for it.