In a significant e-mail privacy case, the Court of Appeals of the Armed Forces held in United States v. Long, 64 M.J. 57 (Ct. App. Armed Forces September 27, 2006), that a service member had a reasonable expectation of privacy in her e-mail in a government computer as to all but the system administrator. [Many footnotes are omitted, and a lot of the opinion is quoted.]<\/p>\n
This case presents us with questions certified by the Judge Advocate General of the Navy regarding the reasonable expectation of privacy a military person has in e-mail messages sent and stored on a government computer system. Lance Corporal Long, in a cross-petition, questions the holding by the lower court that the search and seizure violation it found was harmless beyond a reasonable doubt. We conclude that based on the particular facts of this case, Appellee did have a subjective expectation of privacy in these e-mails, that her expectation of privacy was objectively reasonable, and that the error in admitting these e-mails was not harmless beyond a reasonable doubt.<\/p>\n
…<\/p>\n
THE SUBJECTIVE EXPECTATION OF PRIVACY<\/p>\n
This Court previously considered military members’ subjective expectations of privacy in Maxwell<\/em> and Monroe<\/em>. In Maxwell,<\/em> the accused used America Online’s (AOL) e-mail service to communicate with another junior Air Force officer about the accused’s sexual interests and to send and receive obscene material and child pornography. This Court concluded that Maxwell possessed a subjective expectation of privacy where it was AOL’s policy to offer “contractual privacy protection,” including nondisclosure of e-mail without a court order. <\/p>\n
In Monroe,<\/em> this Court concluded that, in contrast to Maxwell,<\/em> the e-mail system in question was owned by the government. We noted that Monroe’s subjective expectation of privacy was not governed by contractual agreement, as in Maxwell<\/em>, and we concluded that, based on the totality of the circumstances, Monroe had no expectation of privacy, at least from persons maintaining the electronic mail host system.<\/p>\n
In making the case that she had an expectation of privacy, Appellee argues that access to her computer and therefore her e-mail account was protected by a password known only to her. Indeed, the network administrator testified that he did not know her password.<\/p>\n
In response to the argument that Appellee’s password created an expectation of privacy, the Government points out that the passwords are required as a part of the government computer security concerns in order to limit unauthorized access to the government system. Accordingly, the Government concludes that passwords protect governmental interests, not individual privacy concerns.<\/p>\n
The Government relies most heavily on the log-on banner to support its notion that Appellee could not have believed her e-mail communications were private. The Government argues that courts have looked at similar warnings and policies, and found them sufficient to establish that the employee had no expectation of privacy. Conversely, Appellee argues that the language of the banner is not sufficient to remove her expectation of privacy from unreasonable, warrantless searches conducted for law enforcement purposes.<\/p>\n
In light of the particular facts of this case, we conclude that the lower court was not clearly erroneous in its determination that Appellee had a subjective expectation of privacy in the e-mails she sent from her office computer and in the e-mails that were stored on the government server.<\/p>\n
We conclude that the testimony of the network administrator is the most compelling evidence supporting the notion that Appellee had a subjective expectation of privacy. …<\/p>\n
. . .<\/p>\n
THE REASONABLENESS OF THE PRIVACY EXPECTATION<\/p>\n
In O’Connor,<\/em> the Supreme Court recognized that there may be an expectation of privacy in a government workplace but that there is no talisman for determining the reasonableness of such an expectation in cases involving public employees. Instead, the reasonableness of a privacy expectation will differ according to the context, and the “operational realities of the workplace.” M.R.E. 314 discusses searches not requiring probable cause, and subsection (d) of M.R.E. 314 deals specifically with searches of government property. M.R.E. 314(d), which is consistent with the holding in O’Connor, indicates that searches of government property may be made without probable cause unless an individual has a reasonable expectation of privacy in that property and that the determination of the reasonableness of an expectation of privacy “depends on the facts and circumstances at the time of the search.”<\/p>\n
The e-mails seized in this case were originally prepared in an office in HQMC on a computer owned by the Marine Corps and issued to Appellee. They were transmitted over the HQMC network system, stored on the HQMC server, and retrieved by the HQMC network administrator. Each of those factors might arguably fit a situation where society would be unwilling to recognize an individual expectation of privacy. Other evidence in this case, however, convinces us that Appellee’s subjective expectation of privacy in these e-mails is one that society is prepared to accept as reasonable.<\/p>\n
We consider the testimony of Mr. Asesor, the network administrator, describing the agency practices and policies to be most persuasive. We look to office practices because the Supreme Court in O’Connor<\/em> indicated that privacy expectations in the workplace may be reduced by virtue of office practices, procedures, or regulation. In this case, the policies and practices of HQMC reaffirm rather than reduce the expectations regarding privacy on office computers. These policies, among other things, require individual users to have passwords known only to themselves and to change their passwords periodically to ensure privacy. Additionally, these policies limit outside network access to the network administrator and describe very limited conditions under which he would monitor the network for unauthorized use.<\/p>\n
The testimony of the Government’s witness about policies and practices is strong evidence that Appellee’s subjective expectation of privacy was objectively reasonable. Mr. Asesor explained that HQMC’s policy regarding using the network to send personal e-mails had always been lenient and that such use of the network was considered authorized. Mr. Asesor further testified that when doing the testing and monitoring of the network, he did not monitor individual accounts because “it’s a privacy issue.” <\/p>\n
The totality of the circumstances in this case leads us to conclude that, unlike in Monroe,<\/em> Appellee’s expectation of privacy was objectively reasonable. The HQMC log-on banner explained that the network administrator had access to Appellee’s computer as a “monitoring” function. The e-mails retrieved in this case were from Appellee’s account on an unclassified government computer system on which she was authorized limited personal use and were not obtained for maintenance or monitoring purposes. <\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"
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