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Reasonable Expectations of Privacy in Civilian and Military Workplaces

By Kristopher A. Nelson in

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United States v. Long, 64 M.J. 57 (2006)

Appellee was charged with unlawful drug use violating Unif. Code Mil. Justice art. 112a, 10 U.S.C.S. § 912a. Defense motions to suppress incriminating e-mails seized from appellee’s account on a government computer on a claim that the search was unauthorized were denied, and appellee was convicted.

The court held that appellee had a subjective expectation of privacy that was objectively reasonable and that the error in admitting the challenged e-mails was not harmless beyond a reasonable doubt. It thereupon entered an order setting aside the findings and sentence, and it authorized a rehearing.

The court distinguishes workplace searches by employers from searches of and by military personnel due to the greater threat of criminal sanction for workplace misconduct, and thus a greater need for 4th Amendment protections. The dissent, on the other hand, equates workplaces with the military thinks she had no expectation of privacy. The dissent cites United States v. Ziegler, 456 F.3d 1138, 1146 (9th Cir. 2006) saying, “‘Employer monitoring is largely an assumed practice, and thus we think a disseminated computer-use policy is entirely sufficient to defeat any expectation that an employee might nonetheless harbor.’ Every time Appellee turned on her computer, she was aware of the computer-use policy of her service and could not have a reasonable expectation of privacy.”

The court also relies on 1996 military ruling that an Air Force officer using AOL was protected by AOL’s privacy policy (i.e., he had a reasonable expectation of privacy in his stored email due to AOL policy), and that a search without probable cause was also not valid. United States v. Maxwell, 45 M.J. 406 (1996). Note that at the time AOL only stored email for a maximum of 5 weeks before purging, so this doesn’t get into the >180 issue (which allows easier access to electronic records stored longer than 180 days).