Pee No Evil

Jacob Sullum | December 28, 2006

Yesterday the U.S. Court of Appeals for the 9th Circuit sided with federal investigators seeking to examine the supposedly anonymous and confidential results of drug tests taken by baseball players in 2003. Management assured the players that the tests were intended only to measure the prevalence of steroid use in Major League Baseball and that individual results would not be publicly revealed or become the basis for disciplinary action. The laboratories that performed the tests were supposed to destroy the samples and the records linking results to particular players, but the Justice Department used subpoenas to force the labs to preserve them for use in its investigation of illegal steroid distribution. Although U.S. district courts in San Francisco, Los Angeles, and Nevada ruled that using information from the tests violated the players' privacy rights, a 9th Circuit panel disagreed. The decision, which provoked a stong, 70-page dissent, does not seem to be available online yet, so I have not read it. But in addition to threatening the privacy of medical records, it seems likely to undermine scientific research that depends on assurances of confidentiality to elicit information. If subjects in studies of sensitive topics such as drug use, sex, and gambling know researchers' promises can be overridden by federal prosecutors, why should they agree to participate?

Comments

|12.28.06 @ 1:32PM|#

I deny you my essence.

|12.28.06 @ 1:37PM|#

The civil liberties issues are important, but forgive a baseball fan this selfish observation: if this decision stands, the newly-wrought labor peace in MLB-land may well collapse. The bad PR caused by the congressional hearings on steroid use pressured the players' union into agreeing to a tougher anti-doping policy. If players who are now "clean" are going to have past use exposed, the new labor agreement may just blow up.

Kevin

|12.28.06 @ 1:52PM|#

I was always confused about what the hell congress was doing holding hearings regarding steroid use? Is it because baseball is a NATIONAL past time?

:-|12.28.06 @ 1:55PM|#

It's because Congress has all but legislated out of existence the concept of privacy, free will and personal responsibility.

Sam Franklin|12.28.06 @ 2:01PM|#

If the federal investigators are looking for evidence of a crime, you can't hide evidence of that in a private contract. I don't care whether the crime is something valid like murder-for-hire or bogus like sex-for-hire. in either case, taking pictures of the act and then protecting the film in secrecy with a Non-Disclosure Agreement is a no-no for obvious reasons. The NDA won't protect jack in these cases.

Believe me, I could charge a lot more for my services if I could set up contractual fences around criminal evidence.

OTOH, if there is not a criminal investigation here, then I don't see a sufficient reason for upsetting the parties private arrangements.

|12.28.06 @ 2:05PM|#

Val: I seem to remember it has to do with the fact that MLB is a monopoly of some sort, which allows Congress to put its grubby mits all over, around, and in it in ways that are not allowed in competitive industries.

Warren|12.28.06 @ 2:07PM|#

Sam,
True. However, the doctor/patient relationship does enjoy such protection.

|12.28.06 @ 2:11PM|#

"If subjects in studies of sensitive topics such as drug use, sex, and gambling know researchers' promises can be overridden by federal prosecutors, why should they agree to participate?"

Exactly the point. No subjects, no studies. We don't need none of that pesky science stuff reflecting poorly on our War on Bad Stuff(tm)

Puggle|12.28.06 @ 2:14PM|#

Allowing a fucking neocon moron like George W. McCheney-Hitler to have ownership in MLB caused this to happen. And if you disagree with me, then go fuck yourself you right-wing nutjob. /joe

alkali|12.28.06 @ 2:20PM|#

The decision can be read as a PDF here. The dissent begins on page 47 of the PDF.

Sam Franklin|12.28.06 @ 2:27PM|#

Sam,
True. However, the doctor/patient relationship does enjoy such protection.

I wouldn't assume that this falls into the doctor-patient category. In fact, I doubt it does because it does because these tests were not designed to help diagnose or treat the players. Would be an interesting lawsuit, though, that I would love to litigate from either side.

Sam Franklin|12.28.06 @ 2:29PM|#

Doctor patient confidentiality also may not apply because it is probably waived when the communications are used to facilitate committing or getting away with a crime.

|12.28.06 @ 2:35PM|#

val:

Congress holds hearings on whatever it damn well pleases. Even if the legislation it may be contemplating is manifestly unconstitutional, it is under no obligation to justify its investigations. SCOTUS waits until cases deriving from the laws eventually passed work their way through the appellate system before ruling them in or out, but it would never shut down an ongoing congressional investigation. That would be a "political question," and the courts don't want to cross the "separation of powers" line in that regard, anymore than they would put up with Congress butting into The Court's internal workings.

SCOTUS did authorize taking the Fifth Amendment before a congressional panel, but I don't remember it ever backing up a citizen who refused to testify for other reasons. I, for one, would be sorely tempted to refuse a Congressional subpoena on 9th Amendment grounds, claiming that any legislation they were contemplating on Issue X would violate unenumerated rights, and exceeded the powers granted in Article I, anyway. I shall not be so stupid, should I ever get served, to put that fantasy plan into effect.

too many steves refers to baseball's "antitrust exemption." Organized Baseball was held by the courts to not be "interstate commerce" for the purposes of the anti-trust acts. In the Curt Flood case the Court allowed as to how the exemption was still valid, but that Congress could change the underlying law. So now, whenever MLB does something that the Congresscritters don't like, they at least threaten to apply antitrust law to the sport, the same way it applies to football or any other pro league.

Kevin

|12.28.06 @ 2:38PM|#

Huh. I wouldn't have thought a decision like this would have come from the 9th Circuit. Very interesting.

Sam Franklin|12.28.06 @ 2:40PM|#

Huh. I wouldn't have thought a decision like this would have come from the 9th Circuit. Very interesting.

Ya see, a family's entertainment dollar can be spent on a baseball game or a Hollywood blockbuster . . .

creech|12.28.06 @ 2:52PM|#

What doctor/patient privilege? Apparently, in a Congressional hearing, you can't even assert lawyer/client privilege. Communication between you and your lawyer is not privileged,
and your only redcourse, apparently, is to always plead the 5th, which the public, of course, takes as being "guilty as charged."

Warren|12.28.06 @ 2:55PM|#

Actually the 9th is not big on privacy. See Kyllo v. United States.

Sam,
I'm not sure I would support the Dr./patient application here either. I would like to see the privacy respected out of "it's in the interest of science", but just cause I want it don't mean that's the way it oughta be. However I don't see how you could argue that the player gave their samples to "facilitate committing or getting away with a crime".

|12.28.06 @ 2:56PM|#

All communications should be privileged - what right does Congress have to hold hearings on any matter?

Timothy|12.28.06 @ 2:57PM|#

What about a blanket refusal to testify on 5th Amendment grounds?

"I cannot be made to give evidence or testify in a case against myself, I therefore will not participate."

|12.28.06 @ 2:57PM|#

disclosure: i think baseball players should be able to use AAS (under Dr's supervision) for increased athletic performance...

ok, now

the issue is that the data is AGGREGATE data. it's the same issue with the searche engine case from a few months back

data is not being released that player X had Y in his bloodstream

there is no particulars to identify individuals, merely pattern data.

so, before people start whinging about Dr/Patient privilege, this is not a case of Dr releasing information that player John Smith had whatever in his bloodstream

personally, i think congress should have NO jurisdiction whatsoever over what baseball players take into their bloodstream, anymore so than any other private citizen, at least

Warren|12.28.06 @ 2:58PM|#

in a Congressional hearing, you can't even assert lawyer/client privilege.

Try telling that to Brendan Sullivan

Sam Franklin|12.28.06 @ 2:58PM|#

However I don't see how you could argue that the player gave their samples to "facilitate committing or getting away with a crime".

If the confidentiality agreement hide evidence that a crime was committed -- any evidence video, fingerprints, written admissions, blood tests -- then it helps facilitate getting away with the crime for obvious reasons.

Warren|12.28.06 @ 3:04PM|#

you're back to the confidentiality agreement, not the privileged relationship where evidence may be hidden so long as the Doctor is not culpable.

Sam Franklin|12.28.06 @ 3:09PM|#

States vary on whether there is a exception for crimes committed to physician patient confidentiality. i don't know the extent of physician patient confidentiality when one is brought up on federal charges, but I wouldn't be surprised if it is waived in cases of criminal evidence.

|12.28.06 @ 3:26PM|#

Timothy | December 28, 2006, 2:57pm | #
What about a blanket refusal to testify on 5th Amendment grounds?

"I cannot be made to give evidence or testify in a case against myself, I therefore will not participate."

Not a bad thought. Of course, if it is part of your employment screening, or condition of employment it isn't a trial and therefore not subject to the 5th.

|12.28.06 @ 4:00PM|#

"I was always confused about what the hell congress was doing holding hearings regarding steroid use? Is it because baseball is a NATIONAL past time?"

I should think it would be obvious- those hearings were held by the Committee on Government Reform. Congressmen should be tested for steroids on a regular basis.

|12.28.06 @ 4:02PM|#

I'm not sure on this but I think Baseball did not have a ban at the time of use, nor do I think there was a law against it.

"""What about a blanket refusal to testify on 5th Amendment grounds?

"I cannot be made to give evidence or testify in a case against myself, I therefore will not participate.""""

Or what about I cannot be made to give evidence or testify about my knowledge of someone else's involvement because to admit having that knowledge without reporting it is a crime in its self.

I wonder if that would ever work.

|12.28.06 @ 4:03PM|#

"If the federal investigators are looking for evidence of a crime, you can't hide evidence of that in a private contract."

It's all irrelevant because you can't arrest someone for testing positive for drugs, no matter how illegal they are. Having dope in your system is not possession.

:-|12.28.06 @ 4:14PM|#

Having dope in your system is not possession

Unless you're a drug-war parolee who violates the terms of his release. Test positive and you go right back. Do not pass go. Do not collect your life.

|12.28.06 @ 4:28PM|#

It's all irrelevant because you can't arrest someone for testing positive for drugs, no matter how illegal they are. Having dope in your system is not possession.

Wasn't there a story a few months ago about underage kids being charged with "possession" of the alcohol that was in their systems?

Anyway, if they're investigating the sales of the steroids, they could say that they were subpoenaing those who'd tested positive to discover the source.

|12.28.06 @ 4:40PM|#

"""Having dope in your system is not possession

Unless you're a drug-war parolee who violates the terms of his release. Test positive and you go right back. Do not pass go. Do not collect your life.""""

A friend's kid was busted for underage possession of alcohol because he was drunk. He had no alcohol with him at the time. But that's Virgina for you. He didn't think it was worth the fight.

Timothy|12.28.06 @ 4:41PM|#

Kwix | December 28, 2006, 3:26pm | #

Timothy | December 28, 2006, 2:57pm | #
What about a blanket refusal to testify on 5th Amendment grounds?

"I cannot be made to give evidence or testify in a case against myself, I therefore will not participate."

Not a bad thought. Of course, if it is part of your employment screening, or condition of employment it isn't a trial and therefore not subject to the 5th.

Kwix: I was thinking specifically in the case of congressional hearings. I actually don't really have a problem with employer drug screening, provided they make the policy known up front.

|12.28.06 @ 4:42PM|#

Hey David, we were posting at the same time. My friend's kid was arrested 10 years ago or so.

|12.28.06 @ 4:55PM|#

Vic,

This is the story I was thinking of. It was New Hampshire that had passed an "internal possession" law. I think it would be pretty easy for the Gov't to apply the same logic to steroid tests.

Sam Franklin responds to Lamar|12.28.06 @ 4:56PM|#

"If the federal investigators are looking for evidence of a crime, you can't hide evidence of that in a private contract."

It's all irrelevant because you can't arrest someone for testing positive for drugs, no matter how illegal they are. Having dope in your system is not possession.

That does not mean that the drug test is not evidence of a crime. The evidence does not need to be co-extensive with the actus rea to be considered as evidence.

alkali|12.28.06 @ 5:06PM|#

FWIW, the panel opinion in this case was written by Judge O'Scannlain, a Reagan appointee. He was joined by Judge Tallman, who is technically a Clinton appointee but was actually chosen by Sen. Gorton (R-WA) as part of a deal Clinton struck to get one of his actual nominees through. Judge Thomas (no relation), the dissenter, is a for-real Clinton appointee.

|12.28.06 @ 5:36PM|#

laws vary from state to state. in some states, you can be charged with a crime for having illegal drugs in your system. in others, you can't. that addresses the virgina point above.

second of all, people do not have the right not give evidence against themself...
"I cannot be made to give evidence or testify in a case against myself, I therefore will not participate."

the 5th amendment refers to TESTIOMONIAL evidence only. in my state, if you are involved in a serious injury mv accident, you can (and will be) compelled to give a blood sample. no warrant is evne required (due to exigency) and this statutory.

that';s because the 5th amendment does NOT apply to physical evidence, it applies to testimonial evidence

this is a common misconception

also note that steroids are not illegal drugs per se . they are Federal CIII drugs and ARE legal with a prescription btw. this is to contrast with the above examples, whereas for example, it's illegal to to be under the influence of heroin (C-I) or cocaine. cocaine is technically C-II, but the only prescription use is as a topical preparation for surgery.

also, most statutes reference "being under the influence" not bodily possession. it is hard to argue "under the influence" for drugs like AAS, which except for cheque drops etc. and other extremely androgenic version, have little if any "influence" on your behavior, in the way that psychotropics, hallucinogens, narcotics, etc. do

The Wine Commonsewer|12.28.06 @ 6:33PM|#

And people roll their eyes when I comment that there is no hope.

Sam Franklin Further responds |12.28.06 @ 6:44PM|#

[poster whit notes that:]also note that steroids are not illegal drugs per se . they are Federal CIII drugs and ARE legal with a prescription btw. this is to contrast with the above examples, whereas for example, it's illegal to to be under the influence of heroin (C-I) or cocaine. cocaine is technically C-II, but the only prescription use is as a topical preparation for surgery.

If the federal charges were use or possession of the steroid without a valid, good faith prescription, then the drugs in the system would serve as evidence of the possession element of the crime. that is what I meant by that actus rea mumbo jumbo up above.

|12.28.06 @ 7:05PM|#

sam, i am aware of that.

but the difference with AAS is that one would have to prove (for criminal charges) that the person did not have a prescription. i was just distinguishing between AAS and many other "recreational drugs" in that they have legitimate medical use, and there are many many many people with legit prescriptions for AAS

frankly, i think AAS makes the game of baseball more exciting (not that it's hard to make baseball more exciting ) :)

but again, my point is that "under the influence" is a bit different when you are talking AAS vs. a recreational drug, since they are not (in any meaningful way) psychoactive. and don't even get me started on so called "roid rage".

to my knowledge, there is no federal statute that has as "possession" merely having the drug within one's system. there COULD be such a law, but i am not aware of one

i am aware of SOME state laws that criminalize being under the influence of certain illegal drugs in public.

Sam Franklin Responds To Whit|12.28.06 @ 7:10PM|#

whit. agreed. I was addressing Lamar, cuz we wuz havin' a side discush.

|12.28.06 @ 8:30PM|#

Nothing unusal about these tactics. Many years ago i was forced to give a DNA sample for remains identification - even signed a consent form in which I was assured that the sample would never be entered into a criminal database or used as evidence.

Not more than a couple of years later all those protections were overturned.

D.A. Ridgely|12.28.06 @ 11:32PM|#

The evidence does not need to be co-extensive with the actus rea to be considered as evidence.

It's "actus reus" and "mens rea." If you're going to dazzle us with legal jargon, Sam, get it right.

Sam Franklin Responds To DAR i|12.29.06 @ 7:58AM|#

Arrrgh, ya got me thar, matey.

|12.29.06 @ 1:53PM|#

or you coulda just said

"mea culpa"

foolish consistencies and all that

|12.29.06 @ 4:20PM|#

Feh. It's a decision by the 9th Circuit. That means it's going to be reversed.

|1.2.07 @ 11:50AM|#

Agammamon - the same thing happened here when they were looking for a serial killer in Baton Rouge. They had a profile for a while male driving a white P/U Truck. Thus they decided that any and all people they had any reason to suspect be DNA swabbed and tested. Needless to say none of those 500+ samples turned up as the killer but all those men's DNA info is now stored in databases and they are suing to get them removed. Many of these men gave samples in good faith knowing they had no connection to the murders, others were hesistant to give them samples for this very reason and some had actual court orders to be tested or face jail time even with no evidence what so ever they were the killer.

In the end a lab worker doing old DNA samples happened across a sample from an older case and it matched the killers DNA and within a few days he was arrested. Oh btw it was a black male and he never had a white truck. Silly police assumed only white folks are serial killers, damn stereotypes! This one kept them from solving it sooner than later unfortunetly.

Bottom line is never give anything to anyone and promise nothing to no one. Expect nothing from anyone and you will never be disappointed.

If I am ever asked for a DNA sample I will have to claim my DNA is copywrited material and I am only selling samples for $500,000,000.00 a piece, after all where else can you get the same DNA? lol