Recently, 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: