Saturday, December 08, 2007

The Long Arm of Long

This week's FedWeek "Armed Forces News" email newsletter notes upcoming changes to the privacy notice on government computers, apparently prompted by the decision in United States v. Long, 64 M.J. 57 (C.A.A.F. 2006). And yes, the statement of the case is inaccurate.

"5. No Right to Computer Privacy-------------------------------Beginning Dec. 12, Defense Department computers will carry new notices which will clearly tell both civilian and uniformed users that they have no right to privacy while using them. By using the computers, the notices will say, employees automatically understand and consent to monitoring of their emails. Shorter versions of the notices will also appear on government-owned BlackBerrys and other smaller electronic devices. The new notices come in the wake of a recent landmark decision by the Court of Appeals for the Armed Forces, involving a service member who used a government computer to discuss an impending drug test and the steps she took to mask her own drug use. She was convicted at court-martial based on evidence seized from her government computer, but another lower appeals court overturned the conviction because the existing language of the notice did not clearly state there was no right to privacy on government computers. The CAAF decision reversed the lower appeals court's ruling."

PS - You can sign up for the newsletter at www.fedweek.com. It usually contains about 10 short bursts on personnel issues, legislative initiatives, etc., and provides URL's to promotion board results. It's released every Friday afternoon.

10 comments:

Anonymous said...

If users of DoD computers have no right to privacy, how could military defense counsel ever possibly use them in the course of performing their duties, and still honor their ethical obligations to their clients?

Shouldn't military defense counsel now be moving for computer systems of their own, that are not subject to government monitoring?

Perhaps the appellate defense divisions of the various services could lead the challenge.

SD

Anonymous said...

SD, thats a good test to see whether the appellate defense divisions are truly commited to defending servicemembers or to getting through a tour without ruffling feathers. What do you think will happen?

No Man said...
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No Man said...
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No Man said...

Anonymous:
I don't think the monitoring issue is all that relevant in the abstract. My firm monitors my email, or at least they say they might. My clients don't have an AC relationship with our network guy, so am I violating AC privilege/confidentiality by using my firm's email system? Now if the folks at NMCI are looking at appellate defense email systems and circulating copies of client emails about client escapades on the weekend, now that's a problem--and an even greater problem if somehow those email made their way to a trial counsel. I don't think appellate defense shops should waste their time writing computer policy. However, I do agree in principle with Anonymous. The solution is that former defense counsel in leadership positions in the services need to remember their days as a LT/Capt in the defense shop and write monitoring policies that respect confidentiality of client communications and work product.

Anonymous said...

No Man,

I think a private practicioner can indulge in the luxury of being unconcerned about this development: his firm has the same duty to preserve client confidences and his system administrator, hired by the firm, presumably has been contracted to do the same. Military defense counsel can't afford to be so sanguine: their "firm" is also trying to prosecute their clients and has contracted with the system administrator to, among other things, discover evidence of misconduct.

This change is not merely designed to aid the effective "monitoring" or "maintenance" of government computer systems, we know it is expressly intended to authorize what the government did in Long: to locate and read the emails of a particular accused who has come under suspicion of having committed an offense.

If the government has told the defense that it has no reasonable expectation of privacy in government computer systems, how can counsel credibly assert that they have conducted their communications with their clients and maintained their work product in a manner calculated to preserve its confidentiality?

To be sure, I have seen the Navy's Code 20 state that the attorney-client privilege will still be recognized, notwithstanding this change. I just can't understand how "no reasonable expectation of privacy" squares with the factual predicate necessary to support an invocation of the privilege.

SD

John O'Connor said...

SD:

If I talk to you on when we're alone on the street, I might have no reasonable expectation of privacy for 4th Amendment purposes, so if an FBI agent had one of those crazy contraptions designed to hear things from far away, he might be able to listen in without implicating the Fourth Amendment. But if I had no reason to believe that our conversation was being heard by others (e.g., there's no one immediately around us), then the attorney-client privilege can apply.

Anonymous said...

J O'C:

But, isn't DoD's declaration of "no reasonable expectation of privacy" (and the accompanying banner notice) really more like "we are here and listening", rather than simply "don't expect us to ignore anything we happen to overhear"?

Before Long and DoD's reaction to it, I wouldn't have said so. There may be all kinds of good reasons, technical and otherwise, why true "monitoring" of computer systems is necessary and all kinds of information that may be discovered in the process.

My reading of Long, however, is that the emails were not simply discovered in the course of monitoring, but deliberately targeted for retrieval by trial counsel only after the accused was suspected of an offense. We know the government specifically intended the changes it enacted to allow it to continue doing what it had done in Long.

So, if this is more like "we're here and listening", is defense counsel's continued reliance on government computer systems really in keeping with their ethical obligations?

Or -- assuming for the sake of argument, that this is only defense counsel and his client conferring on a public street and hoping no one overhears -- is it fair at least for counsel or his client to wonder why they're forced to do business in this manner?

Again, if the system is private enough (objectively and subjectively) to support an attorney-client privilege -- or any of the other privileges, presumably -- I just can't understand how it could then be true that there is no reasonable expectation of privacy.

SD

John O'Connor said...

I appreciate the thoughtful response, SD, and what you're saying is definitely food for thought. That's probably why I almost always enjoy reading your posts.

I just think that a reasonable expectation of privacy for 4th Amendment purposes and the confidential requirement for privileged communications are apples and oranges, and one really doesn't affect he other.

Put it this way, as No man says, I think the government needs to think long and hard before it starts reading defense counsel communications. In my mind, a policy ought to be written that requires super-high-level approval for any sucgh activity (I can see where it woulod be justified in siome cases, such as where a DC is suspected of plotting a crime or being involved in its planning -- these communications, of course, aren't privileged anyway).

Moreover, if the government does write a policy that permits monitoring of DC emails (whether high-level approval is required or not) I would still argue that, absent knowledge by the DC that these emails were currently being reviewed, there is a sufficient belief of confidentiality to support maintaining these communications as privileged. And I wouldn't view that call as a close one.

Anonymous said...

J O'C:

Thank you for your responses, too. I honestly have been trying to figure this out for some time. I'm not sure this is an apples-and-oranges thing, but based on your comments I'm thinking it may be a difference of degree, vice kind, i.e. that the level of privacy needed to protect attorney-client communications (and all other privileged communications?) may be less than the level of privacy needed to protect against government intrusions(?) It still seems odd to me (in constitutional terms), however, that the analysis should turn on the purpose of the communications as opposed to the place/means by which they occur.
It's almost like saying the government can open that locked container in the trunk of your car if it contains drugs, but not if contains correspondence from your attorney.

SD