Ninth Circuit Revises Workplace Privacy Ruling

A few months ago, we wrote about the 9th Circuit case of United States v. Ziegler, in which the court had found that a private sector employee had no legitimate expectation of privacy under the Fourth Amendment when government agents sought to use evidence from his workplace computer in a criminal prosecution.  This finding was based on the fact that his company had access rights to the computer.

Orin Kerr of the Volokh Conspiracy vehemently opposed this reading of what the Fourth Amendment requires and now the 9th Circuit panel has reissued its opinion in the case, United States v. Ziegler, No. 05-30177 (9th Cir. Jan. 30, 2007).  Although the result comes out the same, Orin is now happy because the court's reasoning is more consistent with Fourth Amendment precedent in this area. 

Here is some of what Orin said yesterday about the case on The Volokh Conspiracy:

The new opinion gets it right: it concludes that the employee had a reasonable expectation of privacy in the machine, but that the employer had the right to consent to the government's search under third-party consent principles. The end result is the same — the evidence is admissible — but the reasoning is very different.

More specifically, the Ninth Circuit relies on this Supreme Court precedent:

Mancusi [v. DeForte, 392 U.S. 364 (1968)] compels us to recognize that in the private employer context, employees retain at least some expectation of privacy in their offices. Id. See also Ortega v. O’Connor, 480 U.S. 709, 716 (1987) (noting that in Mancusi "this Court . . . recognized that employees may have a reasonable expectation of privacy against intrusions by police."); id. at 730 (Scalia, J., concurring) ("In Mancusi v. DeForte, we held that a union employee had Fourth Amendment rights with regard to an office at union headquarters that he shared with two other employees, even though we acknowledged that those other employees, their personal or business guests, and (implicitly) 'union higher-ups' could enter the office.") (internal citations omitted).

Well, I am glad to see that the court took the time to get its opinion right and, in the process, protect important privacy interests of private sector employees.  And who knows, maybe the court changed its mind after reading Orin's very persuasive analysis of the issue.

PS