I'm pleased to report that today the Ninth Circuit changed course in the Ziegler case that I've mentioned here a few times. This is the case holding that a private sector employee lacked a reasonable expectation of privacy in his workplace computer because the employer had access rights to the machine. Today the original panel granted the petition for rehearing and substituted a new opinion for the earlier one. The new opinion is available here.

  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. Here's the new section holding that the employee had a reasonable expectation of privacy in his machine:

  The seminal case addressing the reasonable expectations of private employees in the workplace is Mancusi v. DeForte, 392 U.S. 364 (1968). In Mancusi, the Supreme Court addressed whether a union employee had a legitimate expectation of privacy, and therefore Fourth Amendment standing, in the contents of records that he stored in an office that he shared with several other union officials. The Court held that DeForte had standing to object to the search and that the search was unreasonable, noting that it was clear that "if DeForte had occupied a 'private' office in the union headquarters, and union records had been seized from a desk or a filing cabinet in that office, he would have had standing." Id. at 369. That was so because he could expect that he would not be disturbed except by business or personal invitees and that the records would not be taken except with the permission of his supervisors. Id. The Court thought the fact that the office was shared with a few other individuals to be of no constitutional distinction.
  Mancusi 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).

  I'm not exactly sure what it means to possess "some" expectation of privacy, as either a reasonable expectation of privacy exists or it doesn't. But the opinion later makes clear that Ziegler did in fact have a reasonable expectation of privacy in his office machine. That's the key holding, and I think it's clearly right (and important, too, for the reasons mentioned in my earlier blogging).

  Thanks to Howard for the link.