Is Any Privacy Left in the Workplace?

computer14.JPGRecently, in United States v. Ziegler, a panel of the U.S. Court of Appeals for the Ninth Circuit concluded that under the Fourth Amendment, a private sector employee has no reasonable expectation of privacy in his computer if the employer’s computer administrator has access to that computer.

Orin Kerr has a lengthy and insightful analysis here. He contends that there is a difference between the expectations of privacy between government and private sector employees: “[T]he 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.”

Orin bases his argument that the Ziegler decision is problematic on the ground that private sector employees enjoy greater Fourth Amendment protections than public sector employees.

The problem I see in Ziegler is that it employs a very silly notion of reasonable expectation of privacy that contravenes the Supreme Court’s holding in O’Connor v. Ortega, perhaps the leading opinion on the issue of workplace Fourth Amendment rights.

In O’Connor, the Court held:

Because the reasonableness of an expectation of privacy, as well as the appropriate standard for a search, is understood to differ according to context, it is essential first to delineate the boundaries of the workplace context. The workplace includes those areas and items that are related to work and are generally within the employer’s control. At a hospital, for example, the hallways, cafeteria, offices, desks, and file cabinets, among other areas, are all part of the workplace. These areas remain part of the workplace context even if the employee has placed personal items in them, such as a photograph placed in a desk or a letter posted on an employee bulletin board.

Not everything that passes through the confines of the business address can be considered part of the workplace context, however. An employee may bring closed luggage to the office prior to leaving on a trip, or a handbag or briefcase each workday. While whatever expectation of privacy the employee has in the existence and the outward appearance of the luggage is affected by its presence in the workplace, the employee’s expectation of privacy in the contents of the luggage is not affected in the same way. The appropriate standard for a workplace search does not necessarily apply to a piece of closed personal luggage, a handbag or a briefcase that happens to be within the employer’s business address.

Within the workplace context, this Court has recognized that employees may have a reasonable expectation of privacy against intrusions by police. See Mancusi v. DeForte, 392 U.S. 364 (1968). As with the expectation of privacy in one’s home, such an expectation in one’s place of work is “based upon societal expectations that have deep roots in the history of the Amendment.” Thus, in Mancusi v. DeForte, supra, the Court held that a union employee who shared an office with other union employees had a privacy interest in the office sufficient to challenge successfully the warrantless search of that office. . . .

Individuals do not lose Fourth Amendment rights merely because they work for the government instead of a private employer. The operational realities of the workplace, however, may make some employees’ expectations of privacy unreasonable when an intrusion is by a supervisor rather than a law enforcement official. Public employees’ expectations of privacy in their offices, desks, and file cabinets, like similar expectations of employees in the private sector, may be reduced by virtue of actual office practices and procedures, or by legitimate regulation. Indeed, in Mancusi itself, the Court suggested that the union employee did not have a reasonable expectation of privacy against his union supervisors. The employee’s expectation of privacy must be assessed in the context of the employment relation. An office is seldom a private enclave free from entry by supervisors, other employees, and business and personal invitees. Instead, in many cases offices are continually entered by fellow employees and other visitors during the workday for conferences, consultations, and other work related visits. Simply put, it is the nature of government offices that others such as fellow employees, supervisors, consensual visitors, and the general public may have frequent access to an individual’s office. We agree with Justice SCALIA that “[c]onstitutional protection against unreasonable searches by the government does not disappear merely because the government has the right to make reasonable intrusions in its capacity as employer,” but some government offices may be so open to fellow employees or the public that no expectation of privacy is reasonable. Given the great variety of work environments in the public sector, the question whether an employee has a reasonable expectation of privacy must be addressed on a case by case basis.

In this excerpt from O’Connor, the following principles are established:

1. The fact that employers have access to an employee’s office or things within the employee’s office does not extinguish a reasonable expectation of privacy. The Court noted that: “An office is seldom a private enclave free from entry by supervisors, other employees, and business and personal invitees.” The Court therefore distinguished between situations where the employer has access (where the employee has a reasonable expectation of privacy) and situations where the office is widely open to other employees and the public (where the employee has no reasonable expectation of privacy. Take a look again at this quote:

We agree with Justice SCALIA that “[c]onstitutional protection against unreasonable searches by the government does not disappear merely because the government has the right to make reasonable intrusions in its capacity as employer,” but some government offices may be so open to fellow employees or the public that no expectation of privacy is reasonable.

2. The Court was very explicit in distinguishing between employer access to employee records/office spaces and police access: “Within the workplace context, this Court has recognized that employees may have a reasonable expectation of privacy against intrusions by police.” The Court quoted from Mancusi v. DeForte, 392 U.S. 364 (1968): “DeForte would have been entitled to expect that he would not be disturbed except by personal or business invitees, and that records would not be taken except with his permission or that of his union superiors.” In other words, a person still has a reasonable expectation of privacy even when her employer has access to her records, documents, and office space. In other words, the Court is recognizing that employees can reasonably expect workplace spaces and documents to be private as against the police but not as against their employers.

Nevertheless, in Ziegler the panel stated: “Employer monitoring is largely an assumed practice, and thus we think a disseminated computer-use policy is entirely sufficient to defeat any expectation that an employee might nonetheless harbor.” In other words, the court concludes that because an employer has access to computers, an employee has no reasonable expectation of privacy — as against both the employer and the police.

Not so. As O’Connor makes clear, the employee might have no reasonable expectation of privacy as against his employer, but that does not mean he has no reasonable expectation of privacy as against the police. Because the employer in Ziegler conducted the search pursuant to instructions by an FBI agent, the search is attributable to the FBI. This is a relatively settled doctrine in the law, and the Ziegler court seems to accept this. But the court in Ziegler unfortunately does not seem to have read and understood the Supreme Court’s decision in O’Connor and it proceeds to undermine and contravene a large portion of it.

Hopefully, the 9th Circuit will revisit the case en banc and follow the Supreme Court’s decisions as it is supposed to do.

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7 Responses

  1. Orin Kerr says:

    Dan,

    There’s a tricky line here in the public workplace privacy rights doctrine, though: 1) The mere right to access does not eliminate privacy rights, but 2) a policy announcing that the employer may exercise those rights does in fact eliminate privacy rights. If there is a policy, then the rights against the employer actually do relinquish rights against the government. Of course, in a government office the government and the employer are the same thing. It’s in the context of private employment that they’re different, and the O’Connor framework was not mean to apply in that context.

  2. Orin,

    I don’t quite understand your comment.

    1. You write: “If there is a policy, then the rights against the employer actually do relinquish rights against the government.”

    Are you saying that this is true in both the public and private sector contexts or just the public sector context?

    I’m not sure that I agree with this. It is what some courts have said, but I don’t believe that this is an accurate application of the reasonable expectation of privacy test.

    2. You then write: “Of course, in a government office the government and the employer are the same thing. It’s in the context of private employment that they’re different, and the O’Connor framework was not mean to apply in that context.”

    It is true that O’Connor involves a public sector employer context, but I don’t believe that its statement of how the reasonable expectation of privacy test applies in the workplace is limited to that context. Reading O’Connor and Mancusi together, I don’t believe that an employer monitoring policy will extinguish a reasonable expectation of privacy as to the government law enforcement officials. It will extinguish a reasonable expectation of privacy as to the employer.

  3. Orin Kerr says:

    Dan,

    It’s the rule for the public sector. More broadly, properly understood there is no such thing as an REP relative to the employer vs. a REP relative to the government. That’s not how the REP test works; it’s a term of art, and the only constitutional REP is the REP vis a vis the government. In the context of private employment, sharing a space with other employees does not relinquish a constitutional reasonable expectation of privacy; the fact that you can’t expect privacy in a colloquial sense doesn’t mean you lack an REP. See, e.g., United States v. Most, 876 F.2d 191, 198 (D.C. Cir. 1989) (“[A]n individual need not shut himself off from the world in order to retain his fourth amendment rights. He may invite his friends into his home but exclude the police; he may share his office with co-workers without consenting to an official search.”).

  4. Orin,

    I think we agree for the most part. We’re just both trying to articulate the rule, and I think that both of us are struggling over how precisely to articulate it.

    For example, I don’t think it is accurate to say that “the only constitutional REP is the REP vis a vis the government.” That’s not how the third party doctrine cases work, for example. So the rule you state works in the employment context, but not in other contexts. Other Court doctrines also seem to suggest that exposure to others eliminates a REP.

    Anthony Amsterdam lamented the fact that the Court often didn’t recognize that the REP test should be analyzed vis a vis the government:

    For the tenement dweller, the difference between observation by neighbors and visitors who ordinarily use the common hallways and observation by policemen who come into the hallways to “check up” or “look around” is the difference between all the privacy that his condition allows and none. Is that small difference too unimportant to claim [F]ourth [A]mendment protection?”

    Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L. Rev. 349, 404 (1974).

    My reading of the employment privacy cases is that unlike other areas of 4th Amendment law, the Court understands that exposure to an employer doesn’t eliminate an REP. The REP is assessed as against the government. The problem with Ziegler is that it tries to apply REP concepts from other contexts that the Court has not applied in the employment context.

  5. Orin Kerr says:

    Dan,

    I think the difficulty is that I think you use “reasonable expectation of privacy” in a more colloquial sense, to mean when you can logically and rationally expect another observer not to see your stuff. When interpreted in that colloquial sense, an REP is indeed observer-specific. But the courts use the phrase as a term of art, and I’m using it in the same way.

  6. Orin Kerr says:

    To clarify a bit more, it is true that there are circumstances in which exposure to others eliminates an REP. But the reason for that is *not* because you don’t have a reasonable expectation of privacy vis a vis the other person, which translates to no reasonable expectation of privacy vis a vis the government. Rather, those cases are more about control; when you give control over your stuff to someone else, the Supreme Court has held, you give up your Fourth Amendment rights to what you no longer control. There are good reasons for this, I think, but they have only a marginal relationship to when you could logically and rationally expect privacy vis a vis the government.

    I get into some of these issues in my draft article that I’m working on now. I’ll sent you the draft when I have something more developed.

  7. Vick says:

    Hello,

    I thought that 4th Amendment protects government-sector employees, and not private sector employees?