Every change in technology brings with it complications for judges who are charged with fleshing out the broad principals of due process that are spelled out in the text of our most revered founding documents—chief among them the Constitution.  Computers are not the first such technological breakthrough that has forced courts, and appellate courts in particular—to wrestle with the difficult charge of applying ancient legal concepts to unforeseen situations.  Before computers we had audio technology and more recently thermal imaging equipment.  In all these cases some court is charged with trying to take existing laws and “make them fit” these changes in our level of sophistication.  This is in fact the foundational underpinning of our entire common law system—except that sometimes, as in the Ninth Circuit’s recent decision in United States v. Comprehensive Drug Testing, Inc.  2009 U.S. App. Lexis 19119 they go beyond the narrow strictures of Stare Decisis and break new—doctrinally unsound—ground.

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