Government computers and expectation of privacy

In the first part of its opinion in United States v. Larson, __ M.J. ___, No. 07-0263/AF (C.A.A.F. Apr. 25, 2008), CAAF rather easily rules that an Air Force major had no expectation of privacy in his government computer, which he used to set up a rendez-vous with a civilian police detective who was posing on the computer as a 14-year-old girl and on which pornographic images were stored. The computer was located in a private office assigned to Major Larson and the office was capable of being locked. "[B]ut other Air Force personnel, including the fire department and the command's facility manager also had keys to his office." Id., slip op. at 5. The computer itself was government property that had been provided to Major Larson "to accomplish official business." Id. Major Larson "could secure the computer with a personal password, but a system administrator could still access the computer." Id. When Major Larson "logged on to the computer, he was required to click a button accepting conditions listed in a banner, which stated that the computer was Department of Defense property, was for official use, and that he consented to monitoring." Id., slip op. at 5-6. "The military judge found that, while Appellant 'reasonably understood that he was allowed to send personal e-mail or visit the internet as long as it didn't interfere with [his] duties,' this did not change the fact that the government owned the computer and had a right to access it." Id., slip op. at 6.

Relying on the banner warning, the military judge held that the government had carried its burden of showing by a preponderance of the evidence that Major Larson had no reasonable expectation of privacy in the computer.

CAAF notes the general presumption of no reasonable expectation of privacy in government property and the possibility of overcoming that presumption. In this case, CAAF rules, the defense didn't overcome the presumption.

CAAF distinguished its holding in United States v. Long, 64 M.J. 57 (C.A.A.F. 2006), which dealt with expectations of privacy in a particular password protected government e-mail system. As a practice note, CAAF emphasized that the testimony of the network administrator in Long supported the finding of a reasonable expectation of privacy there. The actual practices of the network administrator may either support or refute a reasonable expectation of privacy. See Larson, slip op. at 10.

Larson also presented an IAC issue. Relying on Florida v. Nixon, 543 U.S. 175 (2004), CAAF indicates that it is generally not ineffective assistance of counsel in violation of the Sixth Amendment for a counsel "to concede some or all aspects of a crime at trial in order to achieve an acceptable overarching strategic goal," even without the client's express consent. Long, slip op. at 15. But a different result might arise if the "trial defense counsel had an in-depth
discussion with Appellant regarding counsel's strategic choice" (and, presumably, the trial defense counsel then failed to follow the client's dictates expressed in that in-depth discussion). Id., slip op. at 17.

CAAF found that the record was silent about whether such a conversation had occurred in this case. Id. This despite an order from the Air Force Court to the trial defense counsel to indicate whether such conversations had occurred, which produced a non-responsive reply from the trial defense counsel. "Puzzlingly," CAAF observed, "the CCA accepted trial defense counsel's nonresponse and proceeded to determine that Appellant’s counsel was not constitutionally deficient." Id., slip op. at 14. CAAF solved that puzzle by assuming error and then testing for prejudice, which it found lacking beyond a reasonable doubt.

Chief Judge Effron wrote a short concurrence which appears to suggest that Nixon's Sixth Amendment test for determining whether a client must consent to counsel's concession of guilty during opening statement or closing argument may be inapplicable in the military due to either Article 45 or Rules for Courts-Martial 811(c), 906(b)(10), and 910. In other words, military statutes or regulations may provide a higher duty on counsel than that required by the Sixth Amendment floor. That concept will no doubt be explored in future cases.

We previously had an extremely interesting discussion about the ethical implications of computer monitoring and monitoring banners on counsel providing defense services. Does anything in the Larson opinion affect the question of whether the privilege applies to attorney-client communications conducted over government e-mail accounts on government computers, including those of both the defense counsel and the client?