Wednesday, May 16, 2007

Wow... you do have an expectation of privacy

Recently I was speaking with the XO of a CG unit who was telling me about a change he recently discovered. Turns out that government employees actually do have an expectation of privacy when using government email.

That's right. You read that right: you actually do have an expectation of privacy.

Here's what he told me: it turns out that there was a recent Marine Corps case that determined that when a government employee uses email, the employee actually has an expectation of privacy.

The case is United States v. Long, U.S. Court of Appeals for the Armed Forces No. 05-5002, September 27, 2006.

Here's a plain English summary from Richard C. Balough, a Chicago-based attorney:
Military Court Finds E-Mail Messages On Marine Corps Computers Are Private

A Marine Corps officer has an expectation of privacy in her e-mail messages sent and stored in a government computer system, the United States Court of Appeals for the Armed Forces has found.

The e-mails were from the officer’s account stored on an unclassified government computer system on which she had authorized limited personal use. The e-mails were obtained as part of an investigation of her for drug use. A motion to suppress the emails was denied at trial because the military judge found the officer had no reasonable expectation of privacy for her e-mail account.

A log-on banner for the email account stated that the government had the right to “monitor” the computer system. However, the appeals court found that the right to monitor the computer system did not allow the government “to engage in law enforcement intrusions by examining the contents of particular e-mails in a manner unrelated to maintenance of the e-mail system.”

The appellate court found that the actual policies and practices of the government “reaffirm rather than reduce the expectations regarding privacy on office computers. These policies, among other things, require individual users to have passwords known only to themselves and to change their passwords periodically to ensure privacy. Additionally, these policies limit outside network access to the network administrator and describe very limited conditions under which he would monitor the network for unauthorized use.”

The court said while the government can intrude into an employee’s computer or e-mail accounts for work-related reasons, “searches conducted for the primary purpose of obtaining evidence of illegal conduct require probable cause.” Since the search in this case went beyond work-related misconduct, probable cause was required. “Because there was no command authorization, the evidence should have been suppressed,” the court concluded.
So, hypothetically, let's say that you were a government employee and wrote emails about, say, using marijuana, nobody can just read your mail and learn about this... unless they have probable cause... and, I'd guess, a warrant to look at such email.

I think it's just easier to figure that employees don't have any expectation of privacy.

More to follow, I'm sure.


  1. This is interesting since it affects (or potentially could affect) me in two ways. 1. I'm a System Admin for our network, and 2. I'm a cop.

    The most important phrase in this piece for most local pubic employees, (i.e.: City Employees) is this:

    did not allow the government “to engage in law enforcement intrusions

    The City can monitor, and discipline an employee for improper use of City Email Systems, but can not, in some cases, bring criminal charges against them or use them in the process of a criminal prosecution.

    What does this mean? You can still get fired.

    Just my 30 cents worth...

  2. ....but there are other dummies out there who post their, um, recreational activities on their MySpace accounts.

    Interesting, but I don't think it's highly significant. I conducted many investigations over the years and never needed access to e-mails to get the facts. If there's probable cause, then one can get a search warrant for a "law enforcement intrusion."