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Tuesday, January 08, 2008
Important follow-up to computer monitoring/ attorney-client privilege article
We previously noted Jack Zimmerman's challenge to the effect of the new Department of the Navy computer monitoring banner and policies on the attorney-client privilege. NIMJ's web site has posted an important follow-up to that controversy. NCTimes.com is reporting that a "warning to users of military computers that government agents could seize -- without cause or a warrant -- anything found on the machines is now under revision, the top legal adviser in the Marine Corps said this week." Here's a link to the full article. The article also reports: "A November memo from the Pentagon detailing the new policy stated that privileged communications remain protected from search and seizure. That piece of information, however, did not appear on the warnings that showed up on the computer screens." Brigadier General James Walker, the Staff Judge Advocate to the Commandant, is also attributed with saying that the banner that raised the concern was dropped last week.
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10 comments:
Hmmm. SD, what does your computer warning say today?
I'll check it first thing tomorrow. But, if there's a reasonable enough expectation of privacy to protect (all?) privileged communications (attorney-client, spousal, priest-penitent..), then how could the government's assertion that there's no reasonable expectation of privacy also be true?
Aren't we back to exactly the same place we were at immediately after Long?
SD
While I appreciate SD checking the facts for us, I can't agree with his analysis. If your computer says you are subject to search unless you are an attorney or priest engaging in your profession, I don't think other categories of people can have a reasonable expectation of privacy. As far as marital privilege, I have not read the new article or any DoD memo on the subject, but I can't imagine they would include that privilege in the coverage. Which would be fine by me. While such a policy does not foster marital harmony the way the privilege does, there are no ethical or regulatory requirements outside DoD that mandate it. I also don't think that most spouses reasonably expect their email on DoD computers to be safe from monitoring. I typically don't discuss with my wife crimes that we committed over my work email. . . Uh, if we had committed any we . . . You get the picture.
"The Government owns it." This is the first premise in the logic train that leads to tyranny. I think that "law-and-order" conservatives who would tend to support government monitoring should think about the philosophical underpinnings of their argument. The Government provides schools, roads, postal service, even BAH funding for homes. Does that provide a basis for a search and seizure waiver. Hell no!
I dissent from the suppossedly mainstream view that email may be routinely monitored. Supervisors should be able to physically see if their employees are productive...using old-fashioned methods. I'm willing to bet that behind every story of computer abuse, there is a parallel dereliction in management. Hence, the practical solution should trump the (un)constitutional solution.
FYI, I checked my computer (an NMCI account on the West Coast) and it had exactly the same notice I had posted earlier.
Sorry to beat a dead horse, but:
1) I still can't follow No Man's argument and I'm not aware of any search/seizure cases where the analysis would turn on the particular duties of the person using or holding the property or the purposes for which the property is being used. By analogy, could you have an expectation of privacy if you were using the government-issued locker in your barracks room to hold correspondence from your attorney, but none whatsoever if you were using it to store drugs?
2) Let's dispose of any notion that this change is intended simply to ensure the government's continued ability to "monitor" DoD computer systems. Any true "monitoring" -- i.e. general, routine actions taken to ensure the security/efficiency of the system (e.g. checking on a big attachment that's jamming a server and finding out it's child porn) --would have been permitted under the old notice. Instead, this change is expressly designed to allow the government to do what CAAF held they could not do in Long: target all the communications of an individual suspect, without needing to obtain a search authorization or to rely on some other exception.
3) As to the expectations of the average sailor or his spouse I'm not so sure. Maybe Navy Times could run a poll: "If you were to depart on an extended deployment, necessitating your reliance on a government communication system to maintain contact with the outside world, would you agree to allow the government to take and read all communications you send to or receive using that system from any person, including but not limited to your spouse, children, family, and friends, but not your lawyer?"
In fact, if we really wanted to dispel any out-dated expectations of privacy that sailors or their families may have, maybe something like this should be the new systems notice/user consent. It's certainly plainer than what's up now.
SD
Do you think that the appellate defense divisions should be proactive on quasi-policy matters like this? Or should they just be reactive to these issues on a case-by-case basis?
I don't claim to know much of anything about the inner workings of the appellate defense shops, or their view of their mandate, but it seems to me that, at a minimum, the JAGs should be out front in ensuring that any computer monitoring policy poses no risk of interfering with the attorney-client communications between detailed defense counsel and their clients.
Geez, between this topic and the "disqualify Sullivan" topic, I wonder if I'm losing my mojo.
To Anonymous, regarding whether the appellate defense divisions should be "proactive" in addressing this and other issues:
I used to think as you did, but now I don't think the appellate defense divisions are best situated to play this role (We can discuss real and potential conflicts that have played out as the appellate defense divisions have attempted to represent the position of the military defense bar as a whole).
I've come to think instead that, if the military defense bar is to mature into an effective coordinated force,that intermediate trial defense structures must evolve. It seems to me that the USMC model of area, regional, and Chief Defense Counsel or, perhaps, the NKO defense "community of practice", currently identified as being headed by CO, NLSO SW hold the promise of fulfilling the role you suggest.
Nonetheless, it has been my experience that when the service JAGs are seeking the defense view on any issue, their efforts are limited to soliciting the views of their respective appellate defense divisions. If the divisions have the de facto authority to speak for the military defense bar, perhaps they should also assume the responsibility.
SD
Suppose you are a gay male serving in the Navy. Should you be communicating via the internet and indicate that you may be gay would their monitoring pick up on that and would the Navy be able to use that evidence against you? Could that result in a court martial and a dishonorable discharge? I know they have "don't ask don't tell" but this is don't ask but we are going to look for it.
Finally if a citizen is communicating to a Naval officer isn't the citizens rights to privacy being violated? Where are the fine lines being blurred here between peoples constitutional right to privacy, and does being int he armed services no longer secure you constitutional rights? I would think that is the exact reason people serve to begin with, protect their Freedoms.
In McVeigh v. Cohen , 983 F. Supp. 215 (1998), a sailor sued because he was dismissed from the Navy on the grounds that his email name brought his sexual orientation into question. The court found that the Navy had violated its "don't ask, don't tell" policy by obtaining information from America Online about the identity of the e-mail account holder.
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