In a decision that may endear the normally-reasonable 9th Circuit of the U.S. Court of Appeals to Jon Kyl enough to get him to stop trying to dismantle it (S1296, 2005), the Court ruled that federal agents "may use the names of 104 players who tested positive in supposedly anonymous testing in 2003, shooting down the MLB Players Association's attempts to keep the names private."
Naturally, the MLBPA disagrees with the decision and is almost certain to appeal. The press release from MLBPA is here.
The test results were supposed to be confidential and anonymous, and strictly for the purpose of MLB determining the prevalence of steroid use among its players.
I fully expect that if the players knew that the test results and their names were going to end up in the hands of federal investigators, the tests wouldn't have happened in the first place.
The importance of all of this?
If the lawyers of the very well-funded MLBPA can't fight off government lawyers, what chance does a small testing company or even an individual have when government investigators decide to go fishing through the records of other employment-related drug tests? Or other, more general, personal medical records?
The 9th Circuit's decision seems to fly in the face of the Supreme Court's decision in Treasury Employees v. Von Raab, 489 U.S. 656 (1989), in which the Court decreed that "test results may not be used in a criminal prosecution without the employee's consent." No such consent was given here.
This decision, while chilling at first (and second and third and so on) glance, could have the effect of undermining the legality of all employer drug testing programs, because now it can be argued that the tests compel employees and applicants for employment to give evidence against themselves. That in fact, employers are acting as agents of the government when they compel people to incriminate themselves by surrendering body tissues/fluids for testing.
I thought about writing to my Congressman, Harry Mitchell, over this, but decided not to do so. I honestly have to believe that the DLC/Corporatist/Republican-types will very quickly address this with a bill if it isn't overturned on appeal.
While they surely love the idea of the government having access to all non-corporate personal records, they won't stand for anything that imperils corporate control of their employees/prospective employees.
Actually, on second thought, I think I will send the Congressman a letter about this. These federal investigators need to know that people are watching them, and watching closely.
Good night!
2 comments:
Yes, you had better write that letter. I will, too. There isn't much that our Congress critters get focused on that doesn't come from constituents in some form or another. They're just trying to keep their breathing tubes clear of the fire hose of information that hits them once the session starts.
Having now read (or at least skimmed) the 9th circuit decision in USA v. Comprehensive Drug Testing, I can say that they did not even consider the issue of the usability of employment drug testing in criminal prosecutions. The decision was very narrowly drawn on the issues presented by counsels on the validity and scope of the warrant. This matter will continue to be litigated in central California and Nevada, and this admissibility of these tests will continue to be an issue, I am sure. There may even be additional litigation over the 20-some additional players whose positive test results were seized.
The bottom line is that the 9th circuit didn't really hand anyone any victories, it just declined to quash a warrant or order the return of evidence seized under that warrant. This is far from over.
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