SIVACRACY.NET: Anyone Who Blogs From Work Needs to Read This

At orinkerr.com. Below is an excerpt:

... Ziegler was an employee of a company called Frontline Processing, described in the opinion as “a company that services Internet merchants by processing on-line electronic payments” in Bozeman, Montana. Ziegler downloaded some child pornography to his computer at work, and his employer, in an effort to help out the FBI, went into Ziegler’s office and copied his computer to give to the FBI. The computer contained child pornography, leading to charrges. Ziegler then filed a motion to suppress, arguing that he had a reasonable expectation of privacy on his workplace computer that was violated by the government-directed search.

The correct way to resolve this case would have been to say that of course Ziegler had a reasonable expectation of privacy in the contents of his private-sector office, see Mancusi v. DeForte, 392 U.S. 364 (1968), including the computer in his office. Then the court should have turned to whether the search was either a private search or else a reasonable warrantless search pursuant to the employer’s valid third-party consent. Unfortunately, however, it seems that no one realized that private-sector Fourth Amendment privacy rights are so different from public-sector Fourth Amendment privacy rights. The defense attorney apparently didn’t notice the difference, and it seems that the AUSA didn’t either. (I couln’t find the briefs on Westlaw, but the opinions summarize the parties’ positions.) And the failure to understand this basic distinction in Fourth Amendment law then worked its way up the line, with apparently no one stepping back and noticing that you couldn’t rely on the public sector Fourth Amendment cases to analyze whether a private-sector employee has a reasonbable expectation of privacy at work.

The unfortunate result is an opinion that makes a quite clearly incorrect conclusion that private-sector employees do not have a reasonable expectation of privacy in the workplace computers in their offices when the employer has access rights to the machine. ...

Comments

Unfortunately, I think the fact that the case involved child pornography probably made it a bad test case to put before the 9th Circuit. The Judicial Branch may be as subject to outraged public opinion as the Legislative one is on this issue. Only 15 Congressional representatives were willing to vote against the Deleting Online Predators Act, even though it bars schools and libraries from access to social networking sites that can also have positive cultural functions. (See http://www.govtrack.us/congress/vote.xpd?vote=h2006-405 to check how your local lawmaker voted.) The otherwise admirable Adam Walsh Child Protection and Safety Act passed unanimously, even though it implicitly equated file-sharing songs with file-sharing child pornography in the fine print and set up a new Cyber Crime unit with the Office of Homeland Security without clearly delineated parameters. (See the debate about Masha's Law and the wishlist of Attorney General Gonzales for more.)

Posted by: Liz Losh | August 10, 2006 07:22 PM

Um, you're defending someone who partakes of porn during work hours???

Posted by: Elayne Riggs | August 14, 2006 10:55 PM

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