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Is Any Privacy Left in the Workplace?

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7 Responses

  1. Orin Kerr says:

    Dan,

    There’s a tricky line here in the public workplace privacy rights doctrine, though: 1) The mere right to access does not eliminate privacy rights, but 2) a policy announcing that the employer may exercise those rights does in fact eliminate privacy rights. If there is a policy, then the rights against the employer actually do relinquish rights against the government. Of course, in a government office the government and the employer are the same thing. It’s in the context of private employment that they’re different, and the O’Connor framework was not mean to apply in that context.

  2. Orin,

    I don’t quite understand your comment.

    1. You write: “If there is a policy, then the rights against the employer actually do relinquish rights against the government.”

    Are you saying that this is true in both the public and private sector contexts or just the public sector context?

    I’m not sure that I agree with this. It is what some courts have said, but I don’t believe that this is an accurate application of the reasonable expectation of privacy test.

    2. You then write: “Of course, in a government office the government and the employer are the same thing. It’s in the context of private employment that they’re different, and the O’Connor framework was not mean to apply in that context.”

    It is true that O’Connor involves a public sector employer context, but I don’t believe that its statement of how the reasonable expectation of privacy test applies in the workplace is limited to that context. Reading O’Connor and Mancusi together, I don’t believe that an employer monitoring policy will extinguish a reasonable expectation of privacy as to the government law enforcement officials. It will extinguish a reasonable expectation of privacy as to the employer.

  3. Orin Kerr says:

    Dan,

    It’s the rule for the public sector. More broadly, properly understood there is no such thing as an REP relative to the employer vs. a REP relative to the government. That’s not how the REP test works; it’s a term of art, and the only constitutional REP is the REP vis a vis the government. In the context of private employment, sharing a space with other employees does not relinquish a constitutional reasonable expectation of privacy; the fact that you can’t expect privacy in a colloquial sense doesn’t mean you lack an REP. See, e.g., United States v. Most, 876 F.2d 191, 198 (D.C. Cir. 1989) (“[A]n individual need not shut himself off from the world in order to retain his fourth amendment rights. He may invite his friends into his home but exclude the police; he may share his office with co-workers without consenting to an official search.”).

  4. Orin,

    I think we agree for the most part. We’re just both trying to articulate the rule, and I think that both of us are struggling over how precisely to articulate it.

    For example, I don’t think it is accurate to say that “the only constitutional REP is the REP vis a vis the government.” That’s not how the third party doctrine cases work, for example. So the rule you state works in the employment context, but not in other contexts. Other Court doctrines also seem to suggest that exposure to others eliminates a REP.

    Anthony Amsterdam lamented the fact that the Court often didn’t recognize that the REP test should be analyzed vis a vis the government:

    For the tenement dweller, the difference between observation by neighbors and visitors who ordinarily use the common hallways and observation by policemen who come into the hallways to “check up” or “look around” is the difference between all the privacy that his condition allows and none. Is that small difference too unimportant to claim [F]ourth [A]mendment protection?”

    Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L. Rev. 349, 404 (1974).

    My reading of the employment privacy cases is that unlike other areas of 4th Amendment law, the Court understands that exposure to an employer doesn’t eliminate an REP. The REP is assessed as against the government. The problem with Ziegler is that it tries to apply REP concepts from other contexts that the Court has not applied in the employment context.

  5. Orin Kerr says:

    Dan,

    I think the difficulty is that I think you use “reasonable expectation of privacy” in a more colloquial sense, to mean when you can logically and rationally expect another observer not to see your stuff. When interpreted in that colloquial sense, an REP is indeed observer-specific. But the courts use the phrase as a term of art, and I’m using it in the same way.

  6. Orin Kerr says:

    To clarify a bit more, it is true that there are circumstances in which exposure to others eliminates an REP. But the reason for that is *not* because you don’t have a reasonable expectation of privacy vis a vis the other person, which translates to no reasonable expectation of privacy vis a vis the government. Rather, those cases are more about control; when you give control over your stuff to someone else, the Supreme Court has held, you give up your Fourth Amendment rights to what you no longer control. There are good reasons for this, I think, but they have only a marginal relationship to when you could logically and rationally expect privacy vis a vis the government.

    I get into some of these issues in my draft article that I’m working on now. I’ll sent you the draft when I have something more developed.

  7. Vick says:

    Hello,

    I thought that 4th Amendment protects government-sector employees, and not private sector employees?