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New Ninth Circuit Decision in Ziegler:
I'm pleased to report that today the Ninth Circuit changed course in the Ziegler case that I've mentioned here a few times. This is the case holding that a private sector employee lacked a reasonable expectation of privacy in his workplace computer because the employer had access rights to the machine. Today the original panel granted the petition for rehearing and substituted a new opinion for the earlier one. The new opinion is available here.

  The new opinion gets it right: it concludes that the employee had a reasonable expectation of privacy in the machine, but that the employer had the right to consent to the government's search under third-party consent principles. The end result is the same — the evidence is admissible — but the reasoning is very different. Here's the new section holding that the employee had a reasonable expectation of privacy in his machine:
  The seminal case addressing the reasonable expectations of private employees in the workplace is Mancusi v. DeForte, 392 U.S. 364 (1968). In Mancusi, the Supreme Court addressed whether a union employee had a legitimate expectation of privacy, and therefore Fourth Amendment standing, in the contents of records that he stored in an office that he shared with several other union officials. The Court held that DeForte had standing to object to the search and that the search was unreasonable, noting that it was clear that "if DeForte had occupied a 'private' office in the union headquarters, and union records had been seized from a desk or a filing cabinet in that office, he would have had standing." Id. at 369. That was so because he could expect that he would not be disturbed except by business or personal invitees and that the records would not be taken except with the permission of his supervisors. Id. The Court thought the fact that the office was shared with a few other individuals to be of no constitutional distinction.
  Mancusi compels us to recognize that in the private employer context, employees retain at least some expectation of privacy in their offices. Id. See also Ortega v. O'Connor, 480 U.S. 709, 716 (1987) (noting that in Mancusi "this Court . . . recognized that employees may have a reasonable expectation of privacy against intrusions by police."); id. at 730 (Scalia, J., concurring) ("In Mancusi v. DeForte, we held that a union employee had Fourth Amendment rights with regard to an office at union headquarters that he shared with two other employees, even though we acknowledged that those other employees, their personal or business guests, and (implicitly) 'union higher-ups' could enter the office.") (internal citations omitted).
  I'm not exactly sure what it means to possess "some" expectation of privacy, as either a reasonable expectation of privacy exists or it doesn't. But the opinion later makes clear that Ziegler did in fact have a reasonable expectation of privacy in his office machine. That's the key holding, and I think it's clearly right (and important, too, for the reasons mentioned in my earlier blogging).

  Thanks to Howard for the link.
Dennis Nolan (mail):
A more direct route to the same destination would be for employers to condition employees' use of employer-provided equipment and internet access on the employer's right to monitor and search. Many employers do that already, and reinforce the message with an appropriate splash screen every time the employee logs in.
1.30.2007 6:25pm
Kazinski:
Orin,
Did they cite your post in their redo? Seems only fair, they could have just cut and pasted your original post into a new opinion then signed it and called it good. It seems this is just another in a long line of embarrassing decisions by the 9th. Or have they lost the ability to be embarrassed?
1.31.2007 1:27am
abean:
Orin,

The qualifier "some" prevents the explanation from becoming pure circular jargon. Clearly the office is not private but it is also not a public place. Thus the qualifier 'some'. The result is that the phrase 'reasonable expectation of privacy' is clearly designated as jargon. It does not literally mean what it says but rather means 'reasonable expectation of [some substantive] privacy'

Which is the essential holding of the opinion.
1.31.2007 1:42pm
JosephSlater (mail):
Interesting stuff, thanks for the update.
1.31.2007 2:08pm