Too much information

January 09, 2007

When major league baseball players agreed to be tested four years ago to gauge the prevalence of steroid use in the game, it was done with assurances from the league that the tests would be anonymous and the results confidential. Neither is apparently the case. And it has implications beyond the ball diamond. The ruling raises questions about the privacy of everyone's electronic information.

An appeals court recently ruled that federal agents probing the distribution and use of steroids in sports can keep all of the electronic records they seized from labs that participated in baseball's drug survey. The Justice Department was looking for the records of 11 players suspected of buying steroids from the Bay Area Laboratory Co-Operative (BALCO), a sports nutrition center whose owners have pled guilty to illegal steroid distribution. What they seized were the confidential records for every player tested, along with records of thousands of other people with no connection to baseball or to other sports. Their records just happened to be part of the electronic data the government gathered up, including tests from players in 13 other sports and employees at two businesses.

The San Francisco-based 9th U.S. Circuit Court of Appeals said the government could keep all the records because they were "intermingled" with the records of the 11 original targets. The court's 2-1 ruling could help authorities pinpoint the source of steroids in professional baseball. But it also allows investigators to peruse the confidential electronic records of people not suspected of anything and maybe find something incriminating to charge them with. That should concern everyone whose personal data is stored electronically by an employer, hospital, financial institution or other entity.

When more than 1,200 baseball players took drug tests in 2003, they were not supposed to be the basis for disciplinary action, let alone criminal investigation. The testing was part of baseball's effort to determine whether a stricter drug-testing policy was needed. Because at least 5 percent -- more than 100 -- of the tests for steroids came back positive, it triggered the start of testing with penalties in 2004. Those penalties were strengthened in 2005 and again in 2006, under pressure from Congress.

The court decision not only puts baseball players on the hot seat, but everyone else whose confidential information was seized. The government should be expected to make its case without exposing or pursuing the personal data of people not connected with its steroids probe.

The ruling warrants more scrutiny. The players union should ask the appeals court to rehear the case with all 15 judges or appeal to the U.S. Supreme Court.