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Petition for Rehearing in United States v. Ziegler:
A few weeks ago, I posted a very long entry about a troubling Fourth Amendment decision from the Ninth Circuit, United States v. Ziegler, which held that a private sector employee has no Fourth Amendment rights in his computer against government surveillance if his employer has a workplace monitoring policy in effect or otherwise has acccess to the computer. As I explained in my earlier post, this is incorrect, and incorrect in a way that has really important and very troubling long-term consequences.

  The last development in the case is that counsel for Ziegler has filed a petition for rehearing (.pdf), explaining the panel's error and asking the panel or the full Court to rehear the case. I very much hope the Ninth Circuit grants the petition: My sense is that the initial panel simply misunderstood a very complex doctrinal area, and that the panel didn't fully realize the impact of the decision or how much it conflicts with other cases in this area. (Full disclosure: following my initial blog post on the case, I contacted Ziegler's attorney and have discussed the case with him.)

  Of course, rehearing in any case is a bit of an uphill battle. Appellate courts get a lot of petitions for rehearing, and it can be hard to predict which petitions are likely to grab the court's attention. In any event, I hope this one does.
Dan Palmer:
Orin,

I read your prior post. I am not a lawyer, but I consider myself a fairly bright individual. Why should an individual using a company computer on company property have any expectation of privacy? Especially if the company has an explicit policy stating that the employee should have no such expectation?

At the office I expect that PERSONAL property is private (cell phone, wallet/purse/brief case) but the computer and Blackberry that my company provide me is their property and while I don't expect them to snoop, if they did I can't see how I would have any basis for complaint.

Don't want your employer reading your personal e-mails? Then don't use your company provided computer to compose/read them. Seems pretty logical to me.
9.5.2006 1:44pm
Ubertrout (mail) (www):
Prof. Kerr:

If you want this to get extra attention, perhaps you could file a repackaged version of your long post as an amicus brief to the petition for rehearing? A quick Google search revealed that such amicus briefs have been done in the past in the 9th Cir.
9.5.2006 1:47pm
rmph:

the initial panel simply misunderstood a very complex doctrinal area

If it's so complex, why are you so harsh on the panel? "Simply misunderstood...very troubling long-term consequences," etc. Can we call their mistake justifiable or understandable rather than troubling and simple?
9.5.2006 1:52pm
OrinKerr:
Dan Palmer,

The reason is that a "reasonable expectation of privacy" does not mean an expectation of privacy that a reasonable person would have. The phrase is a term of art, with specific meaning in specific contexts, and needs to be interpreted accordingly.
9.5.2006 1:55pm
Oris (mail) (www):
Dan Palmer,

To expand a little on Orin's explanation (and I'm sure Orin will correct me if I have misinterpreted something along the way), the court correctly granted the admissibility of the evidence, but for rather frighteningly wrong reasons. The "reasonable expectation of privacy" is from government snoops, not from your employer. If your employer wants to monitor your computer usage at work, and finds evidence of a crime, it can absolutely had such evidence over to the FBI. What the government can't do (without a warrant) is ask the employer to monitor its employees' computer usage and report any suspicious activity. By saying that an employee has no "reasonable expectation of privacy," the court has said that it's ok for the government to conduct searches of people's work computers without a warrant. This is entirely different from saying it's ok for your employer to snoop and then turn you in.


rmph,

The mistake is not as reasonable and understandable as it first appears. It's a complex doctrine, but it's also something that someone really ought to have caught. We're not talking Rule Against Perpetuities here, we're talking about the difference between what a private entity can do and what the government can do without violating the protections of the Fourth Amendment. The court appears to have confused the two.
9.5.2006 2:18pm
Jeremy T:
rmph,

Understand too that one is much nicer about judges one hopes to convince.
9.5.2006 2:45pm
elChato (mail):
Orin,

do you think that the defendant has simply waived the issue? If he didn't bring it up in the trial court, and/or failed to raise it in his appellate brief, is it too late to make something of it in an en banc application?
9.5.2006 3:24pm
XON:
I'm confused here. Isn't it the most basic 1L understanding that if the gov. directs or induces, even indirectly, a non-gov agent to do their snooping, then it obviously implicates the 4th amendment?
9.5.2006 3:31pm
JohnSD:
Maybe it says more about me than about the authors but I was surprised to see "Irregardless" on page 13 of the petition.
"Irregardless of his privacy interest in the computer itself,"
9.5.2006 3:59pm
Gorjus (mail) (www):
That may be "basic 1L understanding" but you're ignoring the evolution of the doctrine (which I think we can all agree is complex). For instance, it obviously implicates the Sixth Amendment if a criminal defendant hasn't gone to try in three years, but one has to engage in a lot of Barker v. Wingo analysis to see if that's permissable.

Can one file an amicus brief on a motion for rehearing, as opposed to the initial briefing? If so, that previous post would ideed be greatly helpful. It also provides the meat of a great petition for cert.
9.5.2006 4:05pm
OrinKerr:
XON,

That is only true if the suspect has an REP in the first place.

As for filing an amicus, I certainly thought about it; I have filed amicus briefs at this stage before. However, under Fed R. App. Pro. 29(e) I only have 7 days after the petition is filed to file my brief; unfortunately, I just couldn't get the time to do it.
9.5.2006 4:26pm
mcallen3 (mail):
which held that a private sector employee has no Fourth Amendment rights in his computer against government surveillance


Hmmmmm. Seems to me this "his" presupposes the answer. To say that a company can let a file clerk, a lawyer, a consultant look at your emails, but not the police seems silly to me. Though I don't doubt that this silly rule is in fact the "correct" one.

mark allen
9.5.2006 7:36pm
New Guest 99:
Commonwealth v. Bryant
http://www.socialaw.com/slip.htm?cid=16435&sid=120
9.5.2006 11:53pm