more on Appeals court upholds privacy of employee email (BUT ***caveats )

[David Farber <dave () farber net>]

Begin forwarded message:

From: Ethan Ackerman <eackerma () u washington edu>
Date: October 17, 2006 3:16:26 PM EDT
To: dave () farber net
Subject: Re: [IP] Appeals court upholds privacy of employee email  
(BUT ***caveats )

Greetings Dave,

If IP finds this useful

It may be worth noting that this area of law if far from clear, and
this particular ruling only impacts the US Armed forces.  This case is
a government-employee-email case, where the "boss" IS the government -
NOT a case where a private-sector employee's email was searched.

Don't get me wrong, this court case is a big deal, and we'll likely
hear more about it - but it is a public-sector employer case, and it
goes _directly opposite_ most other public sector cases to boot.

GWU law professor (and former Supreme Court clerk) Orin Kerr wrote
about the important differences between public and private sector
employers here in a piece critical of a 9th circuit ruling about 2
months ago:

http://www.orinkerr.com/2006/08/09/ninth-circuit-mostly-eliminates- 
private-sector-workplace-privacy-rights-in-computers/

Unfortunately, as Professor Kerr's article title suggests, private
sector employees generally have little to no 4th Amendment protection
in their emails.

It probably also bears reminding that the 4th Amendment only protects
against government invasions of privacy, and doesn't protect against
similar invasions by bosses, co-workers, or anyone else...


-Ethan

On 10/17/06, David Farber <dave () farber net> wrote:
> Begin forwarded message:
>
> From: "Steven M. Bellovin" <smb () cs columbia edu>
> Date: October 17, 2006 1:45:36 PM EDT
> To: dave () farber net
> Subject: Appeals court upholds privacy of employee email
>
> For IP, if you wish.
>
> The United States Court of Appeals for the Armed Forces has held that
> in a
> criminal case, a Marine had a reasonable subjective and objective
> expectation of privacy in personal emails sent on her government
> computer.  This was despite the presence of a banner warning that the
> machine could be monitored.
>
> The court's reasoning turned on the facts in this case.  Modest  
> personal
> use of email was permitted, and the system administrator testified
> that he
> normally didn't read users' emails for "privacy" reasons.  The search
> that
> uncovered the incriminating messages was not routine or work-related;
> rather, it was part of a criminal investigation into (other)  
> misconduct.
> The court held that that last point was crucial -- the wording of the
> banner implied that the monitoring was for routine operational and
> security purposes, rather than being for targeted law enforcement
> activity.
>
> The full opinion is at
> http://www.armfor.uscourts.gov/opinions/2006Term/05-5002.pdf
>
>        --Steven M. Bellovin, http://www.cs.columbia.edu/~smb


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