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Government Responds in United States v. Ziegler:
I have blogged a few times about the Ninth Circuit's recent decision in United States v. Ziegler, which reached the plainly erroneous and very troubling conclusion that a workplace monitoring policy in a private-sector workplace eliminates all Fourth Amendment rights. I blogged about Ziegler's petition for rehearing a month ago, and shortly thereafter the Ninth Circuit called for a response from the United States. Last week the government filed its response, which I have posted here: Appellee's Response to Petition for Rehearing and Rehearing En Banc.

  The government's brief reflects a basic misunderstanding of the Fourth Amendment, and in particular the meaning of the reasonable expectation of privacy test. The government's brief assumes that a reasonable expectation of privacy is all about what I have elsewhere termed the probabilistic model — that is, the chances that something will remain private. Thus, the government imagines, whether a person has a reasonable expectation of privacy is inherently fact-sensitive, and all you need to do is look to the very specific circumstances and see if based on the context it was reasonable for someone to expect privacy. From that perspective, whether a case involves (say) government or private-sector employment is only relevant to the extent actual workplace policies are different.

  But that's simply not how the Fourth Amendment works. The "reasonable expectation of privacy" test is actually a system of localized rules: the phrase is simply a label, and what it actually means depends on the specific context as determined by the Supreme Court's cases. The Supreme Court has decided dozens of cases interpreting the reasonable expectation of privacy test, and those cases offer specific interpretations for lower courts to use. As a result, the actual meaning of the Fourth Amendment is highly localized: "reasonable expectation of privacy" means different things in different contexts, and usually has nothing to do with the probability that a reasonable person would expect something to remain private.

  That difference is critical here, because the Supreme Court has handed down different localized rules for Fourth Amendment rights in a public employment context and in a private employment context. I realize it seems strange at first, but it's basic hornbook law: the doctrinal test for whether there is a "reasonable expectation of privacy" in a private workplace is simply different from the test in a public-sector workplace. It's not because the workplaces are inherently different, but because the U.S. Supreme Court has decided to regulate the two environments using different legal rules. In a nutshell, the private sector rule is that there is an REP unless the workplace is open to the public; in the public sector, there is no REP unless the employee is afforded a space that is not shared by other employees or subject to regular access by other employees. Two different contexts, two different legal rules.

  (Incidentally, if you're interested in learning more about this, I should have a new draft up in about 2 weeks explaining exactly how the Supreme Court uses these different tests to create localized Fourth Amendment rules, all under the "reasonable expectation of privacy" rubric. Stay tuned.)
PersonFromPorlock:
Under the general presumption that the law ought to be consistent, what's wrong with a single standard for REP, and what's right with different standards for government and private workers? Precedent? Lawyers may rely on it, but an old established mistake is still a mistake.

Granted, the single standard the government is using may be the wrong one, but that's a different issue.
10.9.2006 5:20am
logicnazi (mail) (www):
PersonFromPorlock,

I suspect that this stems from differing real (societal) expectations of privacy from your employer and from the government. Many people, myself included, would not feel our privacy is violated if our boss keeps track of what websites we visit or how much time we spend talking around the water color but would if the government did so. Since the government gets to wear the employer hat as well when it is the one paying people it makes sense to give different standards in this situation than in the one where the government is a third party.

I mean to illustrate the point one can imagine trying to use the same standard for when an unreasonable search has occured when the police officer is your brother and when he is some random stranger. If the police officer is your brother it may be the case that no socially acknowledged pravacy violation occured when he walked into your house uninvited because the door was open and happened to overhear you talking on the phone. Yet surely one would not claim that no social expectation of privacy was violated if some police officer you didn't know did the same thing.

At least this is my opinion about what a good justification would be. I think the jurisprudence in this area is seriously messed up. In particular it already doesn't accurately enforce our reasonable expectation of privacy vested in information in other people's possesion. It is quite normal for us to have no expectation of privacy from other people putting our trust in their judgement about who to reveal this information to. Yet from what I gathered from the earlier discussion if you share an office at work with another individual you suddenly lose the protection from a governmental search of your office since it is no longer private.

This is like arguing that living with your wife should allow the government to search your house without a warrant because your information is no longer private. So long as you have personal knowledge or connections with the people who your information is availible to it should not be considered the same as if it was publicly availible. Additionally an unreasonable search of their residence, records or whatever that reveals information of yours that you implicitly trusted to them should count just as much as an unreasonable search performed on you (with all relevant suppression remedies).
10.9.2006 6:02am
logicnazi (mail) (www):
Hmm, I may have been somewhat confused about the standard. I thought in the previous discussion Mr. Kerr had said the private workplace test was the one used in the private sector. If so this part of the jurisprudence is pretty reasonable. I'm still bothered by the lack of suppression remedies when information on you is discovered through a search of someone else.

--

On a broader point it seems the government is fundamentally confused about what it means for an expectation of privacy to be reasonable. I don't just mean in the narrow sense that supreme court doctrine has articulated, these should presumably be viewed as an analysis in specific contexts of the preexisting concept of a reasonable search. It is just absurd to assume that the concept motivating the supreme court's tests for reasonableness is probability of the information remaining private.

I mean suppose the government tomorrow announced that it was listening to all phone calls in the united states and insert camera's into everyone's TVs. The government's analysis would deem these ultimate invasions of privacy to be reasonable because the people being spied upon had good reason to know they were being monitored. The very sorts of abuses this ammendment was meant to protect would be acceptable as long as they were done widely and publicly enough so everyone thought it likely they might be monitored.

Obviously the constition doesn't mean 'is likely' when they use the word reasonable in this context. Rather the intention is obviously something more along the lines of a balance between the invasion of spheres deemed private by society and governmental needs. Listening in on a couple whispering in their marital bed without a good cause is obviously an unreasonable search as the constitution intended it regardless of how likely they thought such monitoring was.

Apart from gutting the plain meaning of the unreasonable search clause this would also be a horrible legal rule. The notion of the probability of an event full stop simply doesn't make sense. An event that is likely under one description may be very unlikely under another. For example suppose most bosses root around in their employee's desk looking for inappropriate material but you work for the ACLU who you know to be very unlikely to search your desk. We can keep going if say your boss is particularly nosy, but perhaps has personally promised you he wouldn't look in your desk. Depending on what way we choose to describe the situation the probability comes out very differently. The question of what is the 'right' comparison class is one philosophers have been trying to solve for years and I don't expect judges to be able to work it out easily.

Worse I think if applied uniformly it could come out bad for the government if a criminal happens to be found out in an improbable fashion, say the police overhear him deep in an almost deserted federal forest. Since the criminal correctly believed that the probability of being overheard was very low doesn't that make this search unreasonable.

Perhaps I am missing something here but the government's position just seems brain dead.
10.9.2006 6:28am
percuriam:
Orin, Just a thought: maybe the SCOTUS got it wrong by treating public and private employees differently. This case can be the test case to fix it.
10.9.2006 9:32am
OrinKerr:
My article responds to all of these questions/concerns, so stay tuned.
10.9.2006 12:04pm
KevinM:
The REP "test" is of course question-begging (much in the same way as "proximate cause" is a surrogate for whether we think liability should attach). I once heard a judge ask my adversary on a suppression motion whether his client had a "reasonable expectation of privacy." Refreshingly, the defense lawyer answered, "That depends on which way you decide this motion." The REP test, in its more expansive formulations, explicitly incorporates values held by society. To some extent, then, it is a
gut test, which is perfectly OK, as long as we recognize it as value-laden, and not merely predictive. To take an absurd example, there are towns in my state where, as a predictive matter, you do not have much of an "expectation" that the police won't search your person or your car, whether or not you consent. That doesn't take it outside the 4th amendment.
10.9.2006 12:44pm
PersonFromPorlock:
But since the Commerce Clause, properly understood, gives the federal government the authority to do anything it wants, isn't this all rather moot? That couple's pillow talk affects interstate commerce, after all. The government would be remiss if it didn't listen in. ;^)
10.9.2006 3:42pm
Bryan DB:
Orin,
Assuming that the Executive would like more power to perform surveillance, isn't it in their best interest to argue that REP is determined by the probability test? For example, if the government makes known that it's monitoring all phone calls into and out of the United States (just as an unlikely hypothetical), then under the probability test, everyone would understand there's a low probability of keeping their conversation private. Since there would be no REP under this test, there could be no "search" and no need for a search warrant.
10.9.2006 7:50pm
Eli Rabett (www):
So, what is your opinion about at will employment?
10.10.2006 11:21am