[IP] more on Appeals court upholds privacy of employee email (BUT ***caveats )
Begin forwarded message:
From: Ethan Ackerman <eackerma@xxxxxxxxxxxxxxxx>
Date: October 17, 2006 3:16:26 PM EDT
To: dave@xxxxxxxxxx
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@xxxxxxxxxx> wrote:
Begin forwarded message:
From: "Steven M. Bellovin" <smb@xxxxxxxxxxxxxxx>
Date: October 17, 2006 1:45:36 PM EDT
To: dave@xxxxxxxxxx
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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