As noted in this earlier post, I have long had reservations regarding the anti-steroids campaign that is promoted by various regulatory bodies and the media. As Peter Henning noted over the holiday season in this extensive post, the Ninth Circuit Court of Appeals recently issued an important decision in the Balco case in which the appellate court overturned three lower court orders that had declared government searches unconstitutional and directed the government to return the drug tests to the businesses that were searched. In United States v. Comprehensive Drug Testing, Inc., a divided Ninth Circuit panel reversed the lower court rulings and upheld the search warrants, including seizure of computer records, and ordered the lower courts to segregate records that fall outside the scope of the warrants so that they can be reviewed by a federal magistrate. The appellate decision also reversed the district judge’s order quashing the subpoena issued after the search, and went on to declare that the government may issue a subpoena for documents held by a third party even after a search for the same records.
In this lucid ReasonOnline op-ed, Jacob Sullum sums up why all of this is quite troubling:
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.
The mob believes that the athletes who use steroids are cheating criminals who should be punished. Let’s just hope that the laws that protect us from government’s overwhelming prosecutorial power aren’t trampled in the process of upholding the myth of fair play in professional sports.
Tom, I have a number of posts on my blog about this subject.
Several points should be made:
1. The issue is not so much the trampling of rights (in my view) as the poor procedure of the MLBPA and the lab. They violated basic research protocol. Having done many many clinical studies, rule one is that if confidentiality is promised, then confidentiality should be assured.
The lab (CDT I believe) and the MLBPA should suffer the wrath of the players because they violated that confidentiality by have the codebook near the data. Note the MLBPA is dodging the issue because they are either aware that they screwed up, or they are completely naive as the implications of their actions.
I broke down that ruling as best I could into the wee hours when it came out. Not being a lawyer, it was confusing in many ways. However, as a clinical researcher, I could not believe that the lab kept the codebook by the data. That is a fundamental error, not appreciated by those who have not been involved in clinical research.
For instance I have 300,000 responses of Iowa youth to a survey (my interest being use of steroids). These data has been combed carefully by statisticians such that they are clearly blind. There are NO identifiers in the data. I, even as an investigator, cannot trace a single teenager (even though I would never do that). I suspect over $100,000 and months of man-hours went into the stripping of this data by statisticians at the state level.
Medical investigators know that there is no federal confidentiality of medical data. There is psychiatric confidentiality, but not medical. Thus the codebook should have been physically separated from the data. Had this basic procedure been followed, there would not have been the problems today.
2. The ‘mob’ does not think these are cheating criminals. Public opinion is all over the map…and based on misinformation. However, drug-cheats are in fact cheats, who do no abide by the rules of fair sport.
Your question, is a good question: ‘when does the pursuit of the true positive hurt the innocent (false positive)?’
I refer the reader to Dick Pound (head of WADA’s) book ‘The Inside Dope’ for his perspective on drug-cheats.
I thought Pound was quite hard on drug cheats, maybe too hard. I know understand why. Based on good faith, and the athlete’s word, Dick Pound defended Ben Johnson, when Johnson was accused of abusing Winnie at the 1988 Olympics in Montreal. Pound was smashed in court, because Johnson obviously was not truthful.
That incited Pound’s determination to stop drug-cheats.
BTW, Ben Johnson has recently espoused a theory that Texan Carl Lewis conspired to poison his (Johnson’s beer) prior to the race.
🙂