in the crosshairs of the f b i from the department of justice he was arrested on mesa two thousand four and he was told your honour's that he was a prime suspect of the terrible bombings in madrid  all documents and and data seized by the government shall be returned and that all copies shall be destroyed so that was how this whole thing began procedurally well y factors are outlined in and in camera but what what is clear to the to the plaintiff is that what happened here is that the judge  issued what i would consider to be the instinctively correct order which is to say the court is going to do its own search warrant it is going to instruct the government to there to be we want to turn this over to great britain for further criminal investigation nothing like that is going on here this is a case where the government has said we are satisfied that we made a mistake we satisfied that mr mayfield i understand is no longer a suspect and it seems to me that that going through questions like that the government despite callous disregard for the constitutional rights is not even relevant to a case like this we're not got the wrong man we have no intention of bothering him anymore that there is no need at all for the cortex i thought it will jurisdiction but the court to find a constitutional violation simply that the fact that an innocent man has had is private papers and now being retained by the government ought to be sufficient for the court to enter into the fray and decide whether the once there is a lawful search of his papers and what is on his personal computer is subject to the search has already lost his privacy in those things  e i'm thinking curious let me read up to my concern what i'm thinking is his privacy was already invaded his privacy was invaded lawfully the constitution permitted the search the private sphere to four are there to four private papers and contents of this computer were already seen and in wired part probably remembered by government agents and now all of the originals have been returned to him is that right now what is the difference between the government keeping calm beast and the government agent keeping copies in their heads certainly you and i undoubtedly remember many supreme court decisions that we've read and we can see the footnotes at the bottom of the page in our eye we probably remember some pages that we read in law school and can still see the footnotes in our mind's eye and remember what some of them said speak for yourself remember it's better than mine your honor your privacy is not a momentary static matter in this being an age where a mirror image of a hard drive is the thing itself or the mirror image of a hard drive  if somebody takes your hard drive and doesn't return it then when it comes time for you to do your taxes or find the phone number of a friend in minneapolis when you have a deposition trip to minneapolis you can't do it but if they give you back your hard drive you can find your friend in minneapolis and you can do your taxes so even though they kept a d v d with a copy of everything that was on your hard drive it isn't the same and if they kept the thing  will have access to it if it is being retained by the government let me ask you about that proposed evil of the government keeping the copies i gave you the example of the friend in minneapolis from this record don't mean if they're nothing problematic about any of them suppose that a year from now one of those friends names turns up in another investigation and it turns out that one of those friends was involved in  some crime one of the agents remember seeing that name on mayfield's hard drive let's track it it seems like the question here is whether the agents are going to rely on their memories which suggests it because you can't remember all footnotes from law school or whether they're going to be able to verify and make sure they don't make another mistake it would seem to me your auditor there's always going to be a balancing any document any one of our personal files at home in any one of our computers and may be hypothetically at some point in the future useful in some way to the government but that's that's an evil and the context of privacy thinking it is the question isn't whether the privacy can be invaded it's just whether you can protect against further errors in the future arising out of the permissible violation of privacy i respectfully disagree with your honor and i understand what you're saying but i respectfully to whether or not it's a bad search but at this point in time simply on the record answering your question the privacy of an american citizen the the right of an american citizen to say to the government you know sure it might be useful to you twenty years from now to know somebody is the address that happened to be on my hard drive but that potential future the loser e possible use for the criminal case does not justify the government retaining a record of the internet sites that i think a record of like of client secrets that has been seized my daughter is personal diary of my wife's musings on on her computer let me tell you  that had struck for the better part of a year his girlfriend wanted her kronk back so i did rule forty one motion to get the truck back part of the argument was you had plenty of time to take your parents take all of the pictures you want take it apart put it going to maintain the invasion of privacy i don't think see anything embarrassing or crock that invasion of privacy was going to stand and be preserved on film but at least she could get her kruk back it seems like that was a reasonable exercise of the judge's discretion to order the photographing and then order the return of the truck and i'm thinking in this case to act had the government urged that wants to keep the material in order to see if any of the names and connections turn up in future terrorism investigations but it will get back all the original so we can work on this hard drive it might be just like property and privacy are have the gloves they are they are they are concepts that the property the privacy concept of comes from the property you have your property back that's the point so your honor i think that when the government does things like intellectual property diaries computer hard drives though the government is a constitutional right and continues to give you access to this material which the government only collected because of an admitted error and i think that the that it's a fundamental type of correlation between property and privacy i had a lot of things i wanted to say and i'm glad i was able to talk with you got a couple minutes left i'll reserve it dur reasonable under the circumstances the court did a couple of things first of all of course they returned all the original property with the government's consent as to copy it had a very restricted order they had to be  to to keep copies out in order to document what it has done that that would apply that illegal as well as legal searches at its extreme it would mean that the government could purposefully do an unconstitutional search with its eyes open it would have all of the proof of the search even though it was illegal from the get go and that leads me to the conclusion that you statutory argument cannot possibly be right what am i missing here your area talking about our argument of the records act that's right investigations and that's it the court also restricted the government from just closing third parties names and information about them so the courts remedy was a very narrow taking into account some of the claims struck that the government's brief in this case did not bring up the possibility of some terrorism investigation three years down the road where it won't work like an innocuous name turned out to be an important matter i brought that up but the computer we most of us now have our own lives on our computers anything that your and i don't do to defend yourself and the civil suit you through is twenty six through thirty seven of the federal rules of civil procedure honor the well rules for you when she of course is a rule that permits compromise accommodation reasonable balance between what the parties need its applications first of all that even though the materials potentially could be just covered through civil discovery mechanisms we're not required to rely on those mechanisms in addition the government were not required so what you sidestepped them by keeping a lot of things including much that you could not get with those mechanisms in the context of this rule forty one james motion where they just recorded balance that the government's position was we need the complete inventory of what we seized in order to disband ourselves and why you did what are you entitled to more to defend yourself than any other litigant facing a civil suit well your honor i think in other contexts certainly where it was made where the government has you know legally seized evidence but of course that's not the case and wonder whether reasonable means that the district court has a fair amount of room to move in one direction or the other and we have to defer to its judgment about what was reasonable almost it's an abuse of discretion that is  market wouldn't be an abuse of discretion you know if the government gets to keep for purposes of defense in a civil suit much that it would not be permitted to discover for purposes of  cases that the sanctions just trying cowpies it's only it imposed in the most extreme circumstances for example in the rammstein case with it there's no question that the search was illegal and this court said that there was tax tax violations and again the court said we will allow the government to retain those copies and we do so except in extreme dancer's none of those circumstances are here in this case where of course the government mayfield attempting to speak to stop the government from changing the judge from changing his rule is try to show the judge your initial instinctive reaction was correct but a strict sense of the equities to you and the judge does not allow it you don't take it personally