Defendant’s personal computer was connected in his dorm room to the Air Force computer network at the Prince Sultan Air Base in Saudi Arabia. The defendant failed to set up sufficient security measures to block access to the computer by others through the system. When officers searched his room for the computer, it was treated as a workplace search under O’Connor v. Ortega. United States v. King, 2006 U.S. Dist. LEXIS 86370 (M.D. Ala. November 28, 2006). As to standing:
The Defendant objects to the finding that the Defendant did not have a reasonable expectation of privacy in the computer files located on his personal computer in his private dorm room on the Prince Sultan Air Base. Normally, courts likely would afford a reasonable expectation of privacy to computer files located on a personal computer in a private dorm room. In this particular situation, however, the Defendant connected the computer to the Air Base’s network. Through this connection to the network, others could view the Defendant’s computer files because of network policies and implemented procedures. Defendant admittedly was aware of such policies and procedures. Defendant attempted to install security settings on his personal computer that would override the network policies, but this attempt ultimately was unsuccessful. Furthermore, the Defendant never took any measures to assure that his security settings were functioning appropriately.
. . .
Most important, the defendant in Katz had no reason to believe that the privacy of his conversation was at risk. He stepped into a public phone booth, closed the door behind him and placed a call with no knowledge of any potential surveillance. In contrast, the Defendant in the present situation connected his computer to the Air Base’s network, knowing that the users of that particular network were subject to monitoring of their traffic and activities. By connecting to the network and exposing his computer to the network’s “share,” the Defendant placed his computer files in plain view for other users of the network. His local settings attempted to limit that access, but were unsuccessful. He would have known that if he had attempted to access his personal computer from an outside computer, but he did not.
As opposed to merely seeking to preserve privacy like the defendant in Katz, the Defendant in this case consciously exposed his computer files to anyone using the network and subsequently attempted to thwart the others’ access to these files. In order to have a reasonable expectation of privacy for those files, however, the Defendant would have to assure that the measures taken were successful. He did not. Therefore, he had no reasonable expectation of privacy.
As to the workplace search:
If the Defendant had no reasonable expectation of privacy, then he has no standing to object to the search. The Magistrate Judge’s Recommendation notes this, but then further analyzes whether the warrantless search conducted by Sgt. Lamar, the Base’s information protection officer, was nonetheless appropriate because of its nature as a workplace search. The Magistrate Judge ultimately found, as her Recommendation reflects, that the search was appropriate as a workplace search. The Defendant contends that the court’s finding that the government conducted a proper workplace search is erroneous.
The objection contends that this search by Sgt. Lamar was part of a criminal investigation authorized by Sgt. O’Brien, and, as such, it could not be a workplace search. This characterization of workplace search law, however, is inaccurate. As the evidence indicates, Sgt. Lopez initially found pornographic files violating General Order-1A (an order preventing the possession of any pictures depicting the female body between the neck and the knees, which was offensive to the Saudis). Lopez reported this finding to Sgt. O’Brien, who asked Sgt. Lamar to investigate. The testimony is not entirely clear whether a criminal investigation had begun at this point in time or not. Regardless, even assuming that Sgt. Lamar’s search was part of a criminal investigation, this search also was based on work-related misconduct, the violation of General Order-1A. As the Supreme Court noted in O’Connor v. Ortega, 480 U.S. 709, 711 (1987), the probable cause requirement is sometimes impracticable “for legitimate work-related, non-investigatory intrusions as well as investigations of work-related misconduct…. [P]ublic employer intrusions on the constitutionally protected privacy interests of government employees for non-investigatory, work-related purposes as well as investigations of work-related misconduct should be judged by the standard of reasonableness under all circumstances.” The highlighted language above indicates that, even though Sgt. Lamar’s search of the Defendant’s files was arguably part of a criminal investigation, that investigation was also an investigation of work-related misconduct. Essentially, they were one in the same. Therefore, merely arguing that the search was part of a criminal investigation does not automatically defeat the search’s contemporaneous status as a workplace search.
Comment: Other courts are contra. This court grants more deference to the government than some other cases.
Officers responding to a disturbance with gunshot found the complainant who was complaining about her live-in boyfriend firing a sawed off shotgun in the house. She validly consented to a search. United States v. Parker, 469 F.3d 1074 (7th Cir. December 1, 2006).*
A malicious prosecution claim cannot be brought under § 1983. Albright v. Oliver, 510 U.S. 266, 268, 271, 274-75 (1994). Whitesides v. Rye, 2006 U.S. Dist. LEXIS 86314 (D. Neb. November 27, 2006).
