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Ninth Circuit Mostly Eliminates Private-Sector Workplace Privacy Rights in Computers:
This is a very long blog post in response to a troubling new Fourth Amendment decision handed down by the Ninth Circuit yesterday, United States v. Ziegler. It's a long post because the issues are both very important and very complicated, and the only way to show the problems with the decision is to do it in a fairly detailed way. I think the post is worth the payoff; the stakes of the case are potentially enormous, so the court's wrong turn is worth explaining in depth.

  First, some background. One of the tricky aspects of Fourth Amendment law is the distinction between the Fourth Amendment protection of government employees and private sector employees. The basic rule for the private sector is that employees have privacy rights at work unless their work space is completely open to the public, with the caveat that their employer can consent to a search of spaces that are not open to the public.

  The rules for government employment are totally different, thanks to the Supreme Court's somewhat odd decision in O'Connor v. Ortega. In that case, the Supreme Court created a sui generis, split-the-baby-in-half regime for government employee Fourth Amendment rights (announced in a plurality opinion by, you guessed it, Justice O'Connor). Under the O'Connor framework for government employee privacy, Fourth Amendment protections in the government workplace hinge on whether the workspace is shared with other employees, or whether the employer has enacted legitimate workplace policies that define privacy rights. The result is that government employees have much less Fourth Amendment protection than private sector employees, with the caveat that government employers cannot consent to a search while private sector employers can. (For more on this, and all the relevant case citations, see the chapter on it in the Justice Department manual on Searching and Seizing Computers that I wrote in '99-'01.)

  With that background in mind, it's a little painful to read yesterday's opinion by the Ninth Circuit in United States v. Ziegler. 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.) [UPDATE: I have now read the appellant's brief. It has all of five pages of analysis, and it didn't see the public/private distinction at all.] 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. The Court based its holding primarily by analogy to United States v. Simons, a Fourth Circuit case imvolving a federal government agency search:
  In United States v. Simons, the case upon which the district court relied, the Fourth Circuit reasoned that an employer's Internet-usage policy—which required that employees use the Internet only for official business and informed employees that the employer would "conduct electronic audits to ensure compliance," including the use of a firewall— defeated any expectation of privacy in "the record or fruits of [one's] Internet use." 206 F.3d at 395, 398. A supervisor had reviewed "hits" originating from Simons's computer via the firewall, had viewed one of the websites listed, and copied all of the files from the hard drive. Id. at 396. Despite that the computer was located in Simons's office, the court held that the "policy placed employees on notice that they could not reasonably expect that their Internet activity would be private." Id. at 398.
  As the government suggests, similar circumstances inform our decision in this case. Though each Frontline computer required its employee to use an individual log-in, Schneider and other IT-department employees "had complete administrative access to anybody's machine." As noted, the company had also installed a firewall, which, according to Schneider, is "a program that monitors Internet traffic . . . from within the organization to make sure nobody is visiting any sites that might be unprofessional." Monitoring was therefore routine, and the IT department reviewed the log created by the firewall "[o]n a regular basis," sometimes daily if Internet traffic was high enough to warrant it. Upon their hiring, Frontline employees were apprised of the company's monitoring efforts through training and an employment manual, and they were told that the computers were company-owned and not to be used for activities of a personal nature. Ziegler, who has the burden of establishing a reasonable expectation of privacy, presented no evidence in contradiction of any of these practices. Like Simons, he "does not assert that he was unaware of, or that he had not consented to, the Internet [and computer] policy." Simons, 206 F.3d at 398 n.8.
  There are a bunch of problems in this section. To begin with, this is a very unpersuasive reading of Simons. The court conveniently doesn't mention this, but in Simons the Fourth Circuit held that the employee did have a reasonable expectation of privacy that was violated by physical entry to the office to get the physical machine. The court only permitted the search of the computer after holding that it was a reasonable search under the "special needs" exception as adopted by O'Connor v. Ortega. The part mentioned above was only about remote monitoring that preceded the physical entry. Here's what the Simons court said about the phsyical entry to Simons' office:
Here, Simons has shown that he had an office that he did not share. As noted above, the operational realities of Simons' workplace may have diminished his legitimate privacy expectations. However, there is no evidence in the record of any workplace practices, procedures, or regulations that had such an effect. [FN: The Internet policy did not render Simons' expectation of privacy in his office unreasonable. * * * ] We therefore conclude that, on this record, Simons possessed a legitimate expectation of privacy in his office.
Simons, 206 F.3d at 399.

  The Ziegler court seems to say in a footnote that this case is different because it involved a computer. In footnote 9, the court suggests that entering the office to search a computer is a search of the computer but not a search of the office. ("Although an employee may have a legitimate expectation of privacy in his office, here the Frontline employees did not actually search Ziegler's office.") This makes no sense, as everything in an office is an item separate from the office; if this rationale were valid, then you could never search an office, just stuff in an office.

  But I digress, so let me get back to the really important stuff. The Ziegler court seems unconcerned that Simons was a government search decided under O'Connor v. Ortega, rather than a private sector search that should be analyzed under Mancusi v. DeForte. So the Court makes its (unpersuasive) analogy to a decision that rested on the framework of government employee rights, apparently applying the low-protection government framework to what used to be the higher-protection private-sector framework. The end-result: the relatively high level of protection that private sector employees have in their computer hard drives are dropped to the low level of protection that government employees have. Not good.

  There is one paragraph in the Zeigler opinion that at least suggests an awareness that there might be some difference between public and private employee Fourth Amendment rights. Here it is:
  Other courts have scrutinized searches of workplace computers in both the public and private context, and they have consistently held that an employer's policy of routine monitoring is among the factors that may preclude an objectively reasonable expectation of privacy. See Biby v. Bd. of Regents, 419 F.3d 845, 850-51 (8th Cir. 2005) (holding that no reasonable expectation of privacy existed where a policy reserved the employer's right to search an employee's computer for a legitimate reason); United States v. Thorn, 375 F.3d 679, 683 (8th Cir. 2004), cert. granted and judgment vacated on other grounds by 543 U.S. 1112 (2005) (holding that a public agency's computer-use policy, which prohibited accessing sexual images, expressly denied employees any personal privacy rights in the use of the computer systems, and provided the employer the right to access any computer in order to audit its use, precluded any reasonable expectation of privacy); United States v. Angevine, 281 F.3d 1130, 1133-35 (10th Cir. 2002) (holding that the employer's computer-use policy, which included monitoring and claimed a right of access to equipment, and the employer's ownership of the computers defeated any reasonable expectation of privacy); Muick v. Glenayre Electronics, 280 F.3d 741, 743 (7th Cir. 2002) ("Glenayre had announced that it could inspect the laptops that it furnished for the use of its employees, and this destroyed any reasonable expectation of privacy . . . ."); Wasson v. Sonoma County Jr. Coll. Dist., 4 F. Supp. 2d 893, 905-06 (N.D. Cal. 1997) (holding that a policy giving the employer "the right to access all information stored on [the employer's] computers" defeated an expectation of privacy).
  Notably, however, almost all of the cases in this strong cite are public sector cases, not private sector cases. The one private sector case on the list is Judge Posner's opinion in Muick v. Glenayre Electronics. But Muick is a bit of an analytical disaster. Here is an excerpt from a case summary I wrote on the case soon after it came out:
With all due repect to Judge Posner, his breezy opinion largely ignores the applicable law on several fronts, and although he reaches the right result, he does so for the wrong reasons. First, Posner gets the agency inquiry pretty clearly wrong. The FBI's request for the store to hold the computer on its behalf almost certainly makes the store a state actor for 4th Amendment purposes: the fact that the employer was acting "selfishly" doesn't mean it wasn't acting at the FBI's behest.

Second, Posner ignores the fact that all of the cases he relies on for his third rationale are government employment cases, and that the store was not a government employer. The Supreme Court in O'Connor v. Ortega created a special 4th Amendment standard for the government workplace, and under that standard notice alone can eliminate a "reasonable expectation of privacy." However, these cases aren't applicable to private employers such as the store, so notice alone should not be enough to eliminate privacy rights there.

* * * [T]he court should have stopped after the first rationale and not offered confusing and misleading alternative holdings on the Fourth Amendment when it didn't need to do so to resolve the case.
  Finally, just to add to the confusion here, the Ziegler court has a long discussion analyzing and ultimately endorsing a California appellate court decision, TBG Ins. Services Corp. v. Superior Court, 117 Cal. Rptr.2d 155, 96 Cal.App. 4th 443 (Cal. Ct. App.2002), which had a long involved discussion of expectations of privacy and social norms in computers. But the Ziegler opinion once again seems not to notice a doctrinal category error: the TBG Ins. Services Corp. case is not a Fourth Amendment opinion. Rather, it is a decision under Article I, section I, of the California Constitution, which provides: "All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy." It turns out that the California courts use the "reasonable expectation of privacy" framework in that context, too, but it seems to have a different meaning than the same phrase has in the Fourth Amendment context. (This is not uncommon, actually. The phrase "reasonable expectation of privacy" is used in the context of privacy torts, as well as in the legal ethics area in the context of attorney-client privilege, and it has a different meaning in each context. As a result, you can't lift the interpretation of "reasonable expectation of priuvacy" from one context and use it in another context.)

  Okay, so by now you're wondering, what difference does it make? If you analyze this case under the private-sector framework, you still will reach the same result because the employer had "common authority" to search the computer, right? Off the top of my head, yes, I think that's right. But the framework announced in Ziegler will still make an enormous difference in lots of other cases. Under the Fourth Amendment, private-sector employees have traditionally enjoyed Fourth Amendment protection in the contents of their offices, including in their office computers. The police can't just barge in to your office and rifle through your desktop computer. Instead, the police need either to get a warrant or to go your employer and ask for the employer's permission to conduct the search. But if private-sector employees have no reasonable expectation of privacy in the hard drives of their office computers, it means that the police don't need to get the boss's permission first. The police can pick an office known to have a computer access policy and simply barge in and grab any computers they want. And they can do this even over the objection of all the employees and the boss. The boss might have a civil claim against the government, but the employee won't have any rights at all; under the Ziegler opinion, the employee has no reasonable expectation of privacy in the contents of his computer.

  The Supreme Court created a special framework for public-sector searches because in that context there's no Fourth Amendment difference between the boss and the police: they're all "the government" for Fourth Amendment purposes. But I think it's important not to let that different framework created for the specific needs of public-sector workplaces bleed over into the private sector. As tricky as these doctrinal distinctions are (and they really are pretty tricky, I think), a great deal of privacy protection hinges on keeping them straight.
Third Party Beneficiary (mail):
While I would agree with Prof. Kerr's analysis of the ruling, I would question how much of an impact it would have even if construed to its logical extreme. What percentage of employers refuse to give consent to a law enforcement search aimed at their employees? I can't remember hearing of any and, in fact, I mostly hear about employers falling over themselves to cooperate with investigations of their employees (either out of fear of liability for having a criminal on the payroll or the classic, "If you don't let us have what we want, we'll get a warrant and take every computer and file cabinet in this office.")
8.9.2006 3:36pm
John Jenkins (mail):
The Ziegler court seems to say in a footnote that this case is different because it involved a computer. In footnote 9, the court suggests that entering the office to search a computer is a search of the computer but not a search of the office. ("Although an employee may have a legitimate expectation of privacy in his office, here the Frontline employees did not actually search Ziegler's office.") This makes no sense, as everything in an office is an item separate from the office; if this rationale were valid, then you could never search an office, just stuff in an office.

I think I buy this more than you do, particularly with network storage. Moreover, on the facts of this case, the government NEVER searched the office. It only had access to the computer files the company duplicated. I don't think you're "search" analysis is right. If the government has to go through a common area to get ot an office it will search, has it "searched" the common area? If there is a warrant for a specific file in a specific place, has the government "searched" the entire room?

The computer is a container like any other and I don't think mere entry into the room containing the computer is necessarily a search, though it could be.
8.9.2006 3:42pm
logicnazi (mail) (www):
Jenkins,

Are you saying that if the police have a suspicion that some employee is holding illegal drugs in an envelope in his office which is sitting on his desk they can enter his office without a warrant and look in the envelope because they aren't searching the office only the envelope and there is no protection against the search of envelopes?

This would totally eviscerate any protection from search.
8.9.2006 3:45pm
JosephSlater (mail):
Thanks for the detailed description of what I also think is an interesting and important area of law. I haven't read the case yet, but at risk of greatly over-simplifying, would it be fair to say something like the following? (And this is in part what your final paragraph says):

The Fourth Amendment jurisprudence gives a lower standard for "government" searches of public employees, because the searches envisioned in this line of cases aren't for a criminal, prosecutorial purpose, but instead are for the purpose of allowing the government agency to be an effective employer. The next big case after O'Connor v. Ortega, of course, was NTEU v. Von Raab, which was about drug testing -- the purpose of which was not to aid in criminal investigations but rather to screen drug users out of certain positions for basic managerial purposes. This Fourth Amendment jurisprudence is consistent with a whole line of cases balancing the constitutional rights of public employees vs. the rights of public employers to run their agency effectively (Connick v. Pickering for the First Amendment, etc.).

The private sector context is different, as you say, because the sole interest there of government searches is criminal prosecution. Therefore, the standards to do such searches should be higher/harder to meet.

Or have I just restated in a crude way what should have been obvious from your more sophisticated take?
8.9.2006 3:46pm
Richard Riley (mail):
Given the doctrinal confusion to which Prof Kerr persuasively points, this looks like a good candidate for a motion for rehearing/suggestion for rehearing en banc. Certainly there's a stronger basis for a motion/suggestion here than in most of them that get filed.

Of course Ziegler will either have to get new counsel, or his lawyers will have to take a deep breath and admit they screwed up in their original arguments.
8.9.2006 3:48pm
cfw (mail):
Pretty troubling.

As a private sector lawyer (own firm) thinking of going in-house, would it be reasonable to say I want to use my own computer, software, VOIP line, and DSL line, thanks, rather than company-supplied computer, Word, PowerPoint, Excel, Outlook, VOIP, etc?

Ideally, I would have an IP license with the employer that would provide a) reasonable expectation of privacy as to non-work items, data, etc., and b) joint license (subject to client's and lawyer's rights to privacy) for the attorney work product, attorney client communications, work correspondence, work emails, etc.

Any other approach seems to make the whole idea of confidentiality and attorney work product meaningless, at least if the government wants to do a search.
8.9.2006 3:56pm
logicnazi (mail) (www):
Prof. Kerr,

I found your analysis compelling I'm kinda puzzled by the workplace privacy jurisprudence. In particular the distinction between shared spaces in an business (offices/areas with multiple people) and personal spaces (individual offices).

If I share my office with one other co-worker does it follow that the police can enter my office and search the area without any warrant of permission from the employer?

If so this seems extremely odd. The fact that I share an office with one other employee suggests I don't have a reasonable expectation of privacy from her and justifies letting her authorize a search but why does it let the police just walk in on their own? If I have a roommate in my home the fact that they can see my stuff doesn't eliminate my expectation of privacy in that space so why should sharing the office with one other person do the same? Especially in situations where I have chosen the person who shares my office (say I hired a secretary and interviewed people specifically to ensure their digression).

More broadly it just seems totally weird to say that just because several people have choose to sit around in the same area and try to make money they lose their expectation of privacy. I mean what happens if I run a business out of my home office and I hire my brother to work in the room with me? Can the police now search that part of my home without a warrant? If not does moving the home office to the inlaw cottage in the backyard suddenly let them search without a warrant?

This whole business just seems strange and unjustified. At least from a cursory glance it seems like the jurisprudence ignore the fact that we have differing expectations of privacy from different people.

On a related point is the distinction between a government employer and a private employer that the government is assumed to be consenting to the searches?
8.9.2006 3:57pm
OrinKerr:
John Jenkins,

No, I believe you're wrong. The Ninth Circuit's analysis presupposes that the government did in fact enter the office, as the employer was acting as the government's agent. Acting as the government's agent, the employer physically entered the office and made a copy of the computer.

Joseph Slater,

Not quite: This is only the 1st stage of the O'Connor analysis. Part two of O'Connor does the special needs balancing much like in Von Raab. So we're not at the special needs issue yet; we're still at the sui generis Fourth Amendment REP analysis for government employment.

Logicnazi,

The key is that there are two workplace privacy rules, not one: so the answer depends on whether we're in the government employment context or the private sector context. But perhaps more importantly, your effort to identify when something feels private to you as an employee has very little to do with the Fourth Amendment test (although it has much more to do with the government REP test than the private sector test). Part of the problem is that the phrase "reasonable expectation of privacy" is a term of art; like most terms-of-art, its meaning in the cases may not mean what the words sound like they mean.
8.9.2006 4:29pm
Hans Bader (mail):
In contrast to the appeals court's assumption that shared spaces aren't entitled to privacy, the Supreme Court has held that the consent of both husband and wife is needed for a search of their house -- the fact that the space is shared doesn't matter, in the private realm.

Moreover, the government has more leeway to regulate public employees than private ones, as Justice White's opinion in Connick, which held that the same speech could be subject to regulation in the government workplace yet be protected when uttered by a "man on the street." The government has proprietary interests in the government workplace that it lacks against the citizenry at large, as the Supreme Court recognized in curtailing the free speech rights of government employees in Waters v. Churchill.

(The otherwise perceptive Judge Posner overlooked this basic fact in his Swank v. Smart decision, where he seems to have said in dictum that because public employees' speech must be on a matter of public concern to be protected, the First Amendment provides private-concern speech with no protection at all -- a silly dictum, since lots of speech in private among private citizens is protected, even when it is of trivial import, and even in public institutions, such as schools, non-employee speech is protected even when it does not address a matter of public concern, as the Ninth Circuit held this year and the Second Circuit earlier concluded in Garcia v. S.U.N.Y. Health Sciences Ctr., both cases in which students' free speech rights were held not to be limited by the public-concern test).
8.9.2006 4:37pm
OrinKerr:
Hans,

I believe you are confusing the reasonable-expectation-of-privacy test with the third-party consent doctrine. And of course Fourth Amendment doctrine need not macth up with First Amendment doctrine.
8.9.2006 4:40pm
SeaLawyer:

There are a bunch of problems in this section. To begin with, this is a very unpersuasive reading of Simons. The court conveniently doesn't mention this, but in Simons the Fourth Circuit held that the employee did have a reasonable expectation of privacy that was violated by physical entry to the office to get the physical machine.


What if there was no physical entry into the office? The companies system administrator can access the computer from anywhere in the world with the right tools.
8.9.2006 4:48pm
John Jenkins (mail):
Logicnazi, um no. First, an envelope is an personal effect covered by the Fourth Amendment. Second, I am suggesting that a search of a desk to find an envelope is not necessarily a search of the office in which the desk sits. Mere presence doesn't make something a "search."

SeaLawyer raises an interesting question. Would the situation be different if the company ghosted the hard drive from somewhere other than the employee's office? I see those as effectively the same.

Hans, I don't think that's right. The consent of either husband or wife is sufficient. It's when the consent is in conflict that I recall the consent of one is not enough (H says no, W says yes, consent is invalid), but I don't remember the case off the top of my head (crim pro was a long time ago). Hell a person who doesn't even live somewhere can give effective consent if the cops reasonably believe the person has authority to consent (ye ole ex-girlfriend).

Prof. Kerr, isn't this decision very much factually centered, in effect holding that where there is a communicated policy of computer monitoring an employee has no reasonable expectation of privacy in the contents of the computer? Doesn't it turn on the fact that the data came from the employer? I guess I just don't think that this case is going to apply as broadly as you do.
8.9.2006 5:24pm
Vintner (mail):
Longer term, the idea that a computer supplied by an employer and connected to the employer's network CAN be private isn't going to fly. As employees of large companies with IT departments know, the operation of such computers is restricted in many ways by "policies" set and enforced over the network, anything on them can be seen and copied by network operators, and all of their network accesses (within or outside the employer) are logged and preserved against loss. Typically the employee cannot even install any encryption software unless there is a back-door key held by the employer. All the development is extending this situation down to smaller employers.

This makes sense, because what's on the computer is supposed to be business-related, and the property of the employer.

An employee-owned computer carried into a physical office and connected to an employee-controlled network other than the employer's network can be private (can have encryption software installed, can efface records of network use, etc.). Here there is both a proper expectation of privacy, and a technical possibility of it.

How on earth did the whole idea of "privacy" in employer-provided computers ever get started? Whatever the history, that mistaken idea has become technologically obsolete.
8.9.2006 5:24pm
Zed (mail) (www):
Orin:

Would it make a difference to you if the police didn't enter to copy the computer? It can be faster to image a drive by taking it physically to be copied to another drive directly, but as a system administrator at a university, I'm quite capable of cloning a user's computers remotely, without the user even being aware. It just takes a little longer, since it has to pass over the network.

I have a hard time agreeing that there is an increased privacy protection burden because the police physically entered a room they didn't even need to physically enter. It seems like the only effect of that conclusion is to force police to make longer, less efficient searches.

Computers aren't envelopes; a lot of physical-world metaphors simply don't apply to them very well. As to whether or not enough judges understand this to prevent this particular decision from having an effect on physical searches, I couldn't tell you, but there certainly are a number of judges that do.
8.9.2006 5:28pm
SeaLawyer:

Computers aren't envelopes; a lot of physical-world metaphors simply don't apply to them very well.


I would replace computer with data, but other than that I completely agree.
8.9.2006 5:55pm
John Jenkins (mail):
Networked storage makes it a different matter, too. What if the user's data files aren't actually stored on his computer?
8.9.2006 6:20pm
OrinKerr:
These are all great questions, and I happen to know of a fantastic casebook that goes into glorious detail about these issues. It will be out soon, published by West Publishers. Buy a copy for yourself; buy a copy for your friends; buy a copy for your friends' friends.
8.9.2006 6:38pm
Brian Day (mail):
IANAL, but I agree with Vintner. Every company that I have worked at that supplied computers (after 1990) have had policies in place that the company could look at the contents of the computer at any time and that any "objectionable material" found would be subject to disciplinary action, including dismissal.
8.9.2006 6:39pm
Randy R. (mail):
When I was an employee of the federal government, I was told in no uncertain terms that I had no right of privacy in my desk drawers or anything on my computer, including all incoming and outgoing email. Whether this was true, I don't know, but no one really wanted to test case it.

Still, it didn't prevent people from bidding on ebay, looking at porno or sending emails to friends.
8.9.2006 6:42pm
Randy R. (mail):
Of course, what really happened is that when the Department wanted to get rid of you, then combed through your computer looking for violations, and they would add all that to the 'soup' of reasons for dismissal. If they liked you as an employee, however, no one would ever check your computer for violations.
8.9.2006 6:44pm
JosephSlater (mail):
Orin:

I'm probably being thick, but I don't understand your response to me. I wasn't getting into the fine points of the 4th Am. jurisprudence as it applies to the public sector (special needs); I was just trying to lay out the reasons for the difference between the private sector rules and the public sector rules. Am I missing something?
8.9.2006 6:47pm
John Jenkins (mail):
cfw, if the material is privileged or work product, then that's a different analysis than the basic 4th Amendment analysis, isn't it? Something could be discovered in a valid 4th Amendment search (say of an office) and still be privilieged material and not admissible evidence for that reason.

Prof. Kerr,

I've finished law school: I'll wait for the treatise.
8.9.2006 7:10pm
DJ (mail):
O'Scannlain is, sadly, a pretty sloppy judge who sometimes seems to twist into knots to achieve a (apparently) preferred outcome. After reading Prof. Kerr's analysis, I wonder if anyone would seriously disagree with me.
8.9.2006 7:50pm
Don Pettengill (mail):
I don't buy at all that anyone has any "expectation of privacy" at all, in the workplace, regarding employer-provided tools and materials, and I don't know why the OP labelled the court "clearly wrong" (or equivalent). Computers in particular are well known to be subject to unannounced inspection, and if the employer invites the police in, that's an authorized search, as I see it. Every company I've ever worked for has this (everything on a company computer is company property) as announced policy and it is so common that even if it's not explicitly announced, it's certainly expected by any reasonably well-informed user, IMO. It may be that in the distant past, some had some expectation or privacy, but those days are long gone. IMO the court is right up to date on this. As a public policy matter I also think the case is well decided. *Of course* the company owns the computer and its contents, abent any other explicit arrangement. The employee who parks illegal material on it is a fool.
8.9.2006 8:06pm
John Jenkins (mail):
DP, I don't think anyone has said that the *result* is wrong. Prof. Kerr is arguing that the holding of the 9th Circuit case reaches farther than the court might have intended.

The big issue, I think, from Prof. Kerr's perspective is that what this sets up is that the expectation of privacy belongs only to the company (not that there isn't one). That being the case, if the police were to enter your company *without the permission of your employer* and seize information on the computer you use, then you would simply lack standing to object to that evidence on Fourth Amendment grounds.

When the company consents, it's not an issue (third party consent is pretty straightforward), but if the company does not consent it presents a problem. That case was not presented on these facts (and I think the holding is somewhat more narrow than Prof. Kerr does), but that is a real concern.

Plus, here, Prof. Kerr isn't talking about a random or even normal search of the computer by the employer (which no one can seriously argue the employer can't do). Here, the employer, acting on a request by the government (i.e. acting as a government agent) searched a specific computer for data. While there is no question, legally, that the employer had the right to do that, it is a completely different issue whether that evidence is admissible or excludable. On these facts, it's still a good search because the company impliedly consented to the search (it's no different than if they let an FBI agent into the building and allowed the agent access).
8.9.2006 9:07pm
Robert Schwartz (mail):
I really don't care about the case law analysis. I am an employer. My employee uses a computer. I bought it with my own money and it is mine, not hers. She can have no expectation of privacy in that computer. I can take it away from her anytime I want to and go through the drives. Some times you law profs get so tangled up in the machinery of the law you loose sight of the ground.

[OK Comments: Robert, nothing in this post gets in the way of your right to inspect your employee's computer. You're not the government; the Fourth Amendment doesn't even apply to you. So you can keep inspecting your employee's computer all you want.]
8.10.2006 12:13am
happylee:
This is truly frightening. Especially among professionals whose personal and professional lives melt together, resulting in personal use of the the Treo and work use of the Blackberry (in my dysfunctional world). Consider we live in a day and age where almost any innocent act can be a felony. For example, emailing my kid to kill or expel that damn chinchilla (or protected species of your choice) in the backyard who keeps chewing on our furniture. If it's on the blackberry a different analysis applies than when I use the work treo -- but was my expectation of privacy any different? And should I spend time in prison for chinchilla killing because I picked up wrong instrument to send the execution order?
Thank you OK.
8.10.2006 1:11am
Crunchy Frog:
If your employer is monitoring your work Treo traffic and chooses to call the local SPCA, sure.

Consider this: assuming the ability to monitor your work Treo traffic, if you use it to set us a drug deal, would your employer (who owns the piese of equipment you are using) be liable for civil penalties, and would your employer's IT guys be held criminally liable if they did not immediately disclose your conduct to the police?
8.10.2006 1:29am
sksmith (mail):
With all due repect to Judge Posner, his breezy opinion largely ignores the applicable law on several fronts, and although he reaches the right result, he does so for the wrong reasons. First, Posner gets the agency inquiry pretty clearly wrong. The FBI's request for the store to hold the computer on its behalf almost certainly makes the store a state actor for 4th Amendment purposes: the fact that the employer was acting "selfishly" doesn't mean it wasn't acting at the FBI's behest.

This is the part of the argument that I don't get. Why does cooperating with the police make one a 'state actor' and thus limited by the 4th amendment? Taken literally, wouldn't that invalidate all questioning by the police? (the police go to ask neighbors whether a suspect is home alot. If they answer, are they therefore themselves state actors, and unable to answer the questions? Suppose the police ask me to open my trunk because they suspect my son, who borrowed the car, has drugs in it. If I consent, have I become a 'state actor,' thus subject to 4th amendment limits? In other words, I can't really consent, because by doing so, I become a state actor and break my son's privacy rights? suppose the police ask me to open my own trunk? Can I say yes without breaking my own privacy rights? ) The whole line of questioning really revolves around one issue; can't citizens legitimately help the police? Is helping the police (by answering questions, by allowing them to search one's own property-like a computer, an office, etc) really illegal? and if it is (if I as a business owner break the law by freely consenting to the police searching my own office space), how can the police actually, concretely catch anybody? What is the practical solution to catching a suspected criminal who has illegal stuff on a computer owned by someone else (i.e. my employer), or who is storing illegal stuff in someone else's car (i.e. a relative's trunk) and so on?

Steve
8.10.2006 1:59am
John Jenkins (mail):
Steve, merely answering questions or giving consent does not make one a state actor.

Can I say yes without breaking my own privacy rights?

No, you can't. If you've consented, then you've given away your Fourth Amendment rights as well (moreover, if it's definitively your car, it's possible that even if the cops hadn't gotten your permission, any evidence seized from the car is still admissible against your son because he wouldn't have standing to raise the issue).

No one has even suggested that helping the police is illegal. Not once. Because of the employer/employee relationship and the validity of consent, the state actor doctrine really doesn't much matter in these cases.

Suppose, however, that the cops hire someone to do something they otherwise could not, then act on the information they obtain. Should that be permissible? Should they be able to cure the taint of an obvious constitutional violation by the use of proxies? The answer courts have reached is no. In the case you're referring to, the court got the right ruling, but that particular arm of its analysis is wrong and unnecessary for the reasons Prof. Kerr noted.

It's not that the fact that the store could have been a state actor affects the outcome (it doesn't because of the valid third-party-consent), it's the fact that it's the wrong analysis and misapplying that analysis screws it up when it comes to applying it in the right place (at least I think that's what Prof. Kerr is saying).
8.10.2006 9:47am
rosignol (mail):
What if there was no physical entry into the office? The companies system administrator can access the computer from anywhere in the world with the right tools.

Indeed. Remote administration software is common these days.

Basing arguments about the legality of a search of a computer on if a phyisical entry into a defined space (building, office, or drawer) took place has been obsolete for some time.
8.10.2006 10:38am
sksmith (mail):
John:

"Steve, merely answering questions or giving consent does not make one a state actor."

I agree with this statement in principle, but since I'm not a lawyer, I don't know if its true. And how does it square with the quote I mentioned (and repeat, below)?

"The FBI's request for the store to hold the computer on its behalf almost certainly makes the store a state actor for 4th Amendment purposes: the fact that the employer was acting "selfishly" doesn't mean it wasn't acting at the FBI's behest."

In essence, OK says that consenting does make one a state actor, and you say consenting does not make one a state actor. Neither of you have given any arguments why you are right, so legally, I don't know who is in fact right (though intuitively, and morally, I think you are). And the follow up question to OK: if consenting does make one a state actor, then how should police actually do their jobs? How should the police actually catch anybody?
(as another example: if giving consent triggers 4th amendment protections-like requiring a warrant-but getting a warrant requires some information to justify issuing the warrant, then isn't it impossible to get a warrant? In other words, if initial information-gathering necessary to justify issuing a warrant itself requires a warrant, one will never be able to gather the necessary information to issue a warrant!)

Steve
8.10.2006 10:50am
John Jenkins (mail):
No, Prof. Kerr does not say consenting makes one a state actor. Prof. Kerr said seizing a computer and holding it *on behalf of the police* makes one a state actor *for the purposes of that analysis*.

If the person seizing the computer did not have a right to it (random civilian) then that person is acting on behalf of the police and the normal Fourth Amendment analysis would apply (whether it was a valid search). Here, the person seizing it seems to have had a right to it. Thus, even IF the store was a state actor, it DOES NOT MATTER, because the store can give valid consent to search the computer.

Thus, even if it were true that giving consent to a search made one a state actor (and I don't think it is, and have never read a case so holding), it would not matter if one's consent were valid.

In this case, the proper analysis is the consent analysis and NOT the state actor/reasonable expectation test. It's simply the wrong test, which is what Prof. Kerr is saying: the Court needlessly applied the wrong test, and applied it incorrectly to make it come out consistently with the right test, which is also silly because evidence only has to get in through one door, not all of the possible doors. I think Prof. Kerr is clear on that point, and I am not sure if I am even helping, but your analysis in the final paragraph doesn't make sense (e.g. consent is an exception to the warrant requirement).
8.10.2006 11:14am
Hans Bader (mail):
I'm well aware that under Supreme Court precedent, either husband or wife can consent to a search of their house if the other spouse is absent.

But if both are present, then either can veto consent to the search, even though it is a shared space.

Thus, the fact that a space is shared does not get rid of privacy rights or Fourth Amendment rights.

Why isn't that fact relevant to this case, regardless of whether it is couched in terms of reasonable expectation of privacy or not?
8.10.2006 11:53am
John Jenkins (mail):
Um, how about because the employee wasn't present to vitiate consent? Then there's the fact that the employee's interest in the computer (licensee) (unlike cohabitants) is lesser than that of the employer (owner), distinguishing the H&W case where access is equal.
8.10.2006 12:23pm
T. More (mail):
Prof. Kerr,

Your answer to John Jenkins on the "office search" issues is not persuasive.

It seems to me rather inaccurate to suggest that the court "presupposes" a government entry on the basis of an agency theory. Indeed, I refer you to Section III of the opinion which expressly refrains from addressing the agency question.

I realize you have a problem with footnote nine, and attempt a reductio, but I'm afraid your attempt falls short. That is, we imagine restricted searches in other contexts, like allowing a "wingspan" search of a car without imagining that the entire car may be searched. It seems to me that the court here is saying this was a computer search, and while the computer was in the office, so long as those parts (if any) of the office given to Ziegler's private use (perhaps a desk drawyer or the like) were not searched then "the office" was not searched. This certainly makes *some* sense rather than "no sense" as you claim. And it no more suggests that no office may be searched than the distinction between a "wingspan search" of parts of a car and a search of the whole car leads us down a slippery slope under which cars may not be searched. The very last sentence of the footnote, citing Taketa, supports my reading.

You seem to suggest that the court somehow overlooks the implications of Mancusi, yet it cites the relevant portion of Mancusi in that sensible (alright, I'm being cheeky here) footnote nine. A fuller excerpt from Mancusi strengthens the courts reading, I think:

"This expectation was inevitably defeated by the entrance of state officials, their conduct of a general search, and their removal of records which were in DeForte's custody. It is, of course, irrelevant that the [392 U.S. 364, 370] Union or some of its officials might validly have consented to a search of the area where the records were kept, regardless of DeForte's wishes, for it is not claimed that any such consent was given, either expressly or by implication."

The Ninth seems to be fully aware of Mancusi, but saying that where, as here, *no* general search was conducted, but only a search that was routine in its scope (of the computer hard drive's contents which the employer routinesly monitors, a fact uncontested by Ziegler) then Mancusi's reasonable expectation of privacy in a private office is not implicated. That is what the court treats as the threshold question here, which is why they don't even address the agency issue you accuse them of presupposing.

This may or may not alter your opinion as to the wisdom of the court's decision here. I have not had enough time to digest it myself. But if we are going to accuse the court here of "sloppiness" we should not do so by suggesting that it presupposes what it in fact explicitly addresses and disclaims, as in the agency question here, nor by supposing that it did not notice the Mancusi analysis, when it deals with that as well.
8.11.2006 4:37am
Robert Schwartz (mail):
Ziegler was an employee of a company ... Ziegler downloaded some child pornography to his computer at work, and his employer, ... went into Ziegler's office and copied his computer to give to the FBI. The computer contained child pornography, leading to charrges.


[OK Comments: Robert, nothing in this post gets in the way of your right to inspect your employee's computer. You're not the government; the Fourth Amendment doesn't even apply to you. So you can keep inspecting your employee's computer all you want.]


That is right I can inspect and, since it is mine, I can copy it, and give it to who ever I want. Just like Zeigler's employer. So there is no case for illegal search here.

Law Professors.
8.11.2006 10:21am
John Jenkins (mail):
Robert, you're right that the search ON THESE FACTS is not illegal. YOU can give anything you want to the government from the computer you own. No one has said that's not the case. In fact, it's been repeatedly said that's not the case and you're ignoring it.

But, hat if the government just walked into your shop, without your permission, and took something from an employee's office without a warrant? If the 9th Circuit's ruling is taken to its logical extreme (and I don't think it will be, but if it were) then the employee can't complain because on this ruling, because of the application of the wrong analysis, the only privacy interest is the employer's and the employee would lack standing to assert the defense.

The reasonable expectation of privacy in this case only operates vis a vis the government, not the employer (though there might be torts or contractual problems there depending on the relationship and what is divulged, but that's outside the scope here). The question is whether an employee has a reasonable expectation of privacy in his or her work computer relative to the government where the employer has not consented to a search. If the employer consents, then the proper analysis is the third-party consent analysis, and that is well-settled law.
8.11.2006 12:01pm
logicnazi (mail) (www):
Jenkin's,

Alright I think I get what you are saying now. The employee has a general expectation of privacy in his office but he doesn't have an expectation of privacy as to the contents of his computer (remote monitoring etc..) hence merely entering the office to retrieve the computer doesn't violate his 4th amendment rights.

Fair enough but to make this argument go through one needs an affirmative argument that the employee doesn't have an expectation of privacy on that computer in his office, i.e., the defacto position is that an expectation of privacy for a room is inherited by the objects in that room.

For instance I'm happy to admit that an individual who publicly makes his *entire* computer contents visible over the internet shouldn't be able to raise a 4th amendment claim to suppress just because the police entered an area that he did have an expectation of privacy in to retrieve that information.

On the other hand the courts have ruled that people don't have a reasonable expectation of privacy for their garbage. The police can search through your trash all they want once you put it on the curb. However, it would be a fourth amendment violation if the police entered your house and searched the trash in your office. In other words the garbage in your office inherits an expectation of privacy from it's location even though it has no inherent expectation of privacy. This makes sense, if you take something that would normally be public and stick it under your mattress you would now expect that to be private.

I guess what I'm missing in this picture is what the affirmative reason is to think that information placed on your workplace computer doesn't inherit the same expectation of privacy as papers you might leave on the desk in your lockable individual office at work. In both cases the employer controls the place the information is kept and authorized agents of that employer could enter and examine your stuff. Are you suggesting that the answer is just that employer monitoring/searches of computers are just more common than similar searches of individual offices? Or something else?
8.11.2006 8:39pm
logicnazi (mail) (www):
Prof. Kerr,

I understand that 'reasonable expectation of privacy' has become a term of art as the notion is fleshed out through prior judicial analysis. However, I thought that the technical meaning in these cases arouse through the solidification of particular analysis of the natural language. Thus in legal arguments about whether someone has a reasonable expectation of privacy one should cite a specific technical definition from prior cases but that technical definition should be an attempt to capture the natural language term.

In other words I took the process to work something like it does in certain areas of mathematics. In the area I work in a 'computable function' is a technical term formally defined as a function that a Turing machine (also a formal term) could calculate. However, the technical definition was chosen because it was a particular analysis of the intuitive notion of computable (something a computer can calculate).

If this is true it is reasonable for the technical term 'reasonable expectation of privacy' to disagree with our intuitive notion in gray areas but we should never find a case where someone obviously has a reasonable expectation of privacy but the technical term disagrees.

Or to put it another way I'm asking WHY the term of art is defined in the particular way it is. Why should cohabitation in an office eliminate your reasonable expectation of privacy but not in the home?

I realize this may be something obvious to an attorney. If so maybe you could just give me a pointer to where I could find the justification for these differences so you don't have to spend time explaining the obvious.

--

Additionally part of what I was wondering in my earlier question is what rule takes precedence in situations that are both a home and office. Are the rules for a company used meaning that if you share a home with your brother and one of the rooms is a home office your sharing of that office eliminates your expectation of privacy or is it like a house where, although your brother could consent to a search, you still retain an expectation of privacy?

--

More broadly I guess I'm looking for some way to understand who has an expectation of privacy in private locations owned by others. It seems in some cases, like the case where the police break into your parent's car and find your drugs, despite the intuitively obvious expectation of privacy your fourth amendment rights haven't been violated. On the other hand I'm pretty sure it isn't the case that while you live with your parents the police can wilily nilly go search your room without anyone's consent and not face a potential suppression of that evidence. I believe this still holds even if your parents institute daily searches or your room themselves so you in fact don't expect to be able to keep things truly private.

In other words if the 4th amendment is going to be applied to give reasonable results at all you must sometimes retain an expectation of privacy in situations where you don't own the location and the owners of the location can and even do regularly see what you keep there. On the other hand the commonsense rule that you have an expectation of privacy whenever you would reasonably be offended/feel violated if random strangers rooted around in that location is obviously not the legal rule.

Is there any coherent analysis behind these distinctions or is it all just a hodgepodge of case law with no underlying principle?
8.11.2006 9:03pm
John Jenkins (mail):
Logicnazi, the reason that you have less of an expectation of privacy in the computer data is that it is already monitored and you KNOW that it's monitored (in the case, I think it hinged on the fact of the known policy of monitoring). In that case, you simply can't meet half of the Katz test: you can't have a subjective reasonable expectation of privacy in data you *know* is not private. The fact that the data is available without even going to your office drives the point home, I think.

I think Prof. Kerr is right that the 9th Circuit has created a doctrinal problem by not analyzing this case under the third party consent analysis (which is pretty much a slam dunk) and instead using the different framework. They may have created the standing problem he talks about, and they will almost certainly have to revisit the issue (the whole Circuit might do so, or it might get up to the Supreme Court). Given the ambiguity, I think *someone* has to review it.

I think I can answer the question to Prof. Kerr, as well (since I doubt he is still reading after this long).

You don't lose your reasonable expectation of privacy merely by cohabitation. The theory is that when you allow a third party into your "private zone" you assume the risk that the third party will divulge things that he or she learns in the private zone.

For example, if you cohabitate with your brother, both of you have a reasonable expectation of privacy in your shared home. However, if *he* consents to a search of the home and the police find incriminating evidence in a common area, you cannot claim a Fourth Amendment violation. If, however, they find it somewhere he had no apparent authority to consent to, say your locked office to which he had no key, then you COULD claim a Fourth Amendment violation because the consent as to that particular "private zone" was invalid: he had no apparent authority to give it.

The business situation isn't a lot different. You aren't a cohabitant, you are allowed there at the sufference of the employer, but vis a vis the government you still have a reasonable expectation of privacy (because typically offices are not themselves monitored the way data traffic is). The employer has access to everything you do, so the employer can STILL give valid consent to a search, but you DO have a reasonable expectation of privacy.

Now, the 9th Circuit seems to have created the standing problem in your car example. The government can violate the rights of the company, but you can't complain about it. In this case, it didn't matter, but in the future it might (again, I am not so sure about that as Prof. Kerr is).

BTW, the Reasonable Expectation of Privacy standard comes from a concurrence in Katz v. U.S. by Justice Harlan
My understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as "reasonable."
It's been explained in a lot of specific cases (e.g. third-party consent, technology). Also note that it's only part of the analysis. If you had a Reasonable Expectation of privacy, that just makes the government's activity a "search," and they can still use the evidence obtained if they had a warrant or an exception to the warrant requirement (of course, because we're talking about consent, we've ASSUMED someone had a reasonable expectation of privacy).

Of course, if you want the down and dirty short version, it's this: Depending on the judge, the evidence will get in or not based on some random ruling, such rulings are rarely displaced on appeal because the standard for evidentiary rulings is very deferential and many criminal defendants just accept the shaft they're given and don't appeal because they can't afford it or some other reason (counsel who weasel their way out of responsibility, for example).
8.11.2006 9:46pm
logicnazi (mail) (www):
Jenkins,

Thanks for replying to this old thread! That really clarified things for me. You've convinced me I was wrong about the computer point, but presumably things would be different if the company had a assured the workers they weren't monitoring the computers.

That is pretty much what I thought the standard was. I was just a bit confused when Prof. Kerr suggested it was a technical term. I thought he was saying that there were technical requirements over and above whether society views that situation as a private one (the reasonable bit) assuming of course you actually expect it to be private.

There is one small issue I'm a bit confused about. What happens when you share an office with someone? I took Prof. Kerr to be saying earlier this eliminates your expectation of privacy. Now I agree this seems the reasonable result when you have a cubicle or many person office but it doesn't seem any different than the cohabitation case when you have a personal lockable office that your secretary uses as well.

Perhaps I just misunderstood and Prof. Kerr was just talking about the cubicle/many person situation where society wouldn't be prepared to recognize your expectation of privacy as reasonable and didn't mean to say that your expectation of privacy vanishes as soon as two people are in the same office.

Anyway, thanks again for the answer!
8.12.2006 6:30pm
Robert Schwartz (mail):
Jenkins: No case stands for more than its facts. If the 9th Circus used loose language in explaining a holding what we both think is correct, it is not a real problem. When you get the next case you will point how inapposite this one is.

Law Professors go into orbit worrying about dicta. Real lawyers can distinguish between dicta and holding.
8.13.2006 12:50am
John Jenkins (mail):
R.S.,

Maybe you did a different course of law school than I did, but the RULE of a case stands for more than the facts of the case. When a Circuit Court of Appeals announces a rule that one does not have a reasonable expectation of privacy as a matter of law, that's a problem for future cases where the same RELEVANT facts are present.

Since the court did not predicate its holding on the consent (in fact doing the wrong analysis as O.K. noted), then in the future any time there is (1) data on an employer's computer (2) seized by the government then the government can argue, based on this case that there was no "search" and the warrant requirement does not apply. That is not dicta in this case, it is the logic on which the court makes its decision.
8.13.2006 1:37am
T. More (mail):
John J.,

And what exactly is the problem with the rule as announced? It really only affects the rights of the criminal defendant and HIS expectation of privacy, no?

As I think even OK noted when he was still responding on this thread, the employer would still have the same recourse after this decision as before, no?

So if the employer's rights are what worry you, and they remain the same after this decision as before, what exactly is the problem with the rule as announced? I'm open to the possibility that there is a problem, but frankly I don't see it. Ex ante, the employer had a different set of remedies than the employee here, and if we envision that as a result of this decision the employer's rights might be violated, how exactly are the employer's remedies altered by this decision?

T.
8.13.2006 6:01am
John Jenkins (mail):

T.M.,

I haven't talked about, nor been concerned with the rights of the employer. It's not an issue raised by the opinion. The problem with the rule is that it could essentially give carte blanche to investigators to seize data from employers' computers without a warrant and without any exception to the warrant requirement which data they can then use against the employee.

If the government does that, then the employee has no standing to challenge the evidence on Fourth Amendment grounds because there was no constitutional "search." There would no longer be a meaningful check on the government.

Prof. Kerr did mention civil liability to the employer, but that's laughable. Such a suit would never be brought, and if it were, it would be dismissed like almost all such suits are.

I think Prof. Kerr is right that computer data just doesn't fit well within the Katz framework and the Court is going to have to revisit Katz if the Fourth Amendment is to provide any protection at all.
8.13.2006 10:40am
OrinKerr:
John tipped me off to the thread still running, although it's a bit hard to respond in part because we would need to cover a tremendous amount of law to get us all on the same page to see the intricacies of the problem.

I do want to respond to one point, though. Logicnazi writes:
I understand that 'reasonable expectation of privacy' has become a term of art as the notion is fleshed out through prior judicial analysis. However, I thought that the technical meaning in these cases arouse through the solidification of particular analysis of the natural language. Thus in legal arguments about whether someone has a reasonable expectation of privacy one should cite a specific technical definition from prior cases but that technical definition should be an attempt to capture the natural language term.

In other words I took the process to work something like it does in certain areas of mathematics. In the area I work in a 'computable function' is a technical term formally defined as a function that a Turing machine (also a formal term) could calculate. However, the technical definition was chosen because it was a particular analysis of the intuitive notion of computable (something a computer can calculate).

If this is true it is reasonable for the technical term 'reasonable expectation of privacy' to disagree with our intuitive notion in gray areas but we should never find a case where someone obviously has a reasonable expectation of privacy but the technical term disagrees.
No, that's wrong. In mathematics, you are dealing with absolute and formal concepts, and the need to come up with human approximations of those absolute and formal concepts. The absolute concept is always the goal. But law is different: law is man-made, and the courts give meaning to it through application.

I'll have more on this in a forthcoming article, actually. Stay tuned. See also the comment thread here.
8.13.2006 12:40pm
John Jenkins (mail):
O.K. was kind enough not to throw me under the bus, but this idea:
I think Prof. Kerr is right that computer data just doesn't fit well within the Katz framework and the Court is going to have to revisit Katz if the Fourth Amendment is to provide any protection at all.
came from someone other than him, and I don't have the time to go back an look to see where (I still agree with it though).
8.13.2006 12:59pm