United States v. Long

UNITED STATES, Appellant and Cross-Appellee

v.

Jennifer N. LONG, Lance Corporal
U.S. Marine Corps, Appellee and Cross-Appellant

No. 05-5002

Crim. App. No. 200201660

United States Court of Appeals for the Armed Forces

Argued February 21, 2006

Decided September 27, 2006

GIERKE, C.J., delivered the opinion of the Court, in which
EFFRON, BAKER, and ERDMANN, JJ., joined. CRAWFORD, J., filed a
dissenting opinion.

Counsel

For Appellee and Cross-Appellant: Charles Gittins, Esq.
(argued); Lieutenant Commander Jason S. Grover, JAGC, USN (on
brief); Lieutenant Brian L. Mizer, JAGC, USN.

For Appellant and Cross-Appellee: Major Kevin C. Harris, USMC
(argued); Commander Charles N. Purnell II, JAGC, USN (on brief);
Colonel Ralph F. Miller, USMC.

Amicus Curiae for Appellee and Cross-Appellant: Stephanie Knott
(law student) (argued); H. Brian Holland, Esq. (supervising
attorney) and Patrick E. Tolan, Esq. (supervising attorney) (on
brief) - for Barry University, Dwayne O. Andreas School of Law.

Military Judge: E. W. Loughran

This opinion is subject to revision before final publication.
United States v. Long, No. 05-5002/MC

Chief Judge GIERKE delivered the opinion of the Court.1

This case presents us with questions certified by the Judge

Advocate General of the Navy regarding the reasonable

expectation of privacy a military person has in e-mail messages

sent and stored on a government computer system.2 Lance Corporal

Long, in a cross-petition, questions the holding by the lower

court that the search and seizure violation it found was

harmless beyond a reasonable doubt.3 We conclude that based on

1
Oral argument in this case was heard on February 21, 2006, at
Barry University, Dwayne O. Andreas School of Law, in Orlando,
Florida, as a part of this Court’s “Project Outreach.” See
United States v. Mahoney, 58 M.J. 346, 347 n.1 (C.A.A.F. 2003).
This practice was developed as part of a public awareness
program to demonstrate the operation of a federal court of
appeals and the military justice system.
2
The Judge Advocate General of the Navy certified the following
issues:

I. WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS
ERRED WHEN [IT] DETERMINED THAT, BASED ON THE EVIDENCE
ADDUCED AT TRIAL, APPELLEE HELD A SUBJECTIVE EXPECTATION
OF PRIVACY IN HER E-MAIL ACCOUNT AS TO ALL OTHERS BUT
THE NETWORK ADMINISTRATOR.

II. WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS
ERRED WHEN [IT] DETERMINED THAT IT IS REASONABLE, UNDER
THE CIRCUMSTANCES PRESENTED IN THIS CASE, FOR AN
AUTHORIZED USER OF THE GOVERNMENT COMPUTER NETWORK TO
HAVE A LIMITED EXPECTATION OF PRIVACY IN THEIR E-MAIL
COMMUNICATIONS SENT AND RECEIVED VIA THE COMPUTER
NETWORK SERVER.
3
We granted the following issue submitted by Appellee and Cross-
Appellant:

WHETHER THE LOWER COURT ERRED IN FINDING THAT THE MILITARY
JUDGE’S ERROR IN ADMITTING E-MAILS SENT AND RECEIVED BY
LANCE CORPORAL LONG ON HER GOVERNMENT COMPUTER WAS HARMLESS
BEYOND A REASONABLE DOUBT.

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the particular facts of this case, Appellee4 did have a

subjective expectation of privacy in these e-mails, that her

expectation of privacy was objectively reasonable, and that the

error in admitting these e-mails was not harmless beyond a

reasonable doubt.

FACTS

Appellee was charged with several specifications of

unlawful drug use in violation of Article 112a, Uniform Code of

Military Justice (UCMJ).5 The Government’s case was based, in

part, on several e-mails that were sent and received by Appellee

and that were retrieved from a government server. These e-mails

contained statements written by Appellee indicating, among other

things, a fear that her drug use would be detected by urinalysis

testing and the steps she had taken in an attempt to avoid such

detection.

At trial, the defense made a motion to suppress the e-mails

because they were the result of a search which was not properly

authorized. The military judge denied the motion holding that

Appellee had no expectation of privacy in the e-mails stored on

4
Lance Corporal Long is the Appellee on the certified issues and
the Appellant on her cross-petition. For clarity we will refer
to her as Appellee throughout this opinion. We will refer to
her opponent as the Government.
5
10 U.S.C. § 912a (2000).

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United States v. Long, No. 05-5002/MC

the government server. Contrary to her pleas, Appellee was

convicted by members of the charged offenses.6

On appeal, Appellee challenged the ruling of the military

judge on the motion to suppress her e-mails. The United States

Navy-Marine Corps Court of Criminal Appeals disagreed with the

military judge, holding that the search was unlawful, but

further concluding that the error in admitting the e-mails was

harmless beyond a reasonable doubt.7

EVIDENCE ON THE MOTION TO SUPPRESS

Mr. Flor Asesor, the Senior Network Administrator for the

government computer network, was the sole witness to testify on

the motion. He testified that Captain Fitzharris, an

investigator for the Marine Corps Inspector General, was looking

for evidence of misconduct.8 Captain Fitzharris told Mr. Asesor

to retrieve the e-mails from Appellee’s e-mail account. Mr.

Asesor retrieved her e-mails which had been stored on the

government server and provided them to Captain Fitzharris.

6
Appellee was sentenced to confinement for two months, reduction
to the lowest enlisted pay grade and a bad-conduct discharge.
The convening authority approved the sentence as adjudged.
7
United States v. Long, 61 M.J. 539, 546, 549 (N-M. Ct. Crim.
App. 2005).
8
Although there is no evidence in the trial transcript
explaining the nature of Captain Fitzharris’s investigation,
there are averments in the prosecution trial brief on the motion
to suppress indicating that the investigation involved
allegations of an improper relationship between Appellee and an
officer. Although the details are not clear, the military
judge’s finding of fact that Captain Fitzharris was searching
for evidence of misconduct is fully supported by the testimony
of Mr. Asesor.

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United States v. Long, No. 05-5002/MC

The Court of Criminal Appeals found that the e-mails were

retrieved as the result of a specific request by law enforcement

officials9 and concluded that “[t]here is also no doubt under the

facts of this case that the actions of the network administrator

in looking for, retrieving, and turning over the subject e-mails

to law enforcement officials amounted to a search.”10 These

findings and conclusions are consistent with the finding by the

military judge that this was a “search for evidence” and the

Government’s concessions in their brief and oral argument before

this Court. Mr. Asesor authenticated Appellate Exhibit XIII, a

log-on banner which appeared anytime a user logged onto his or

her office computer. This banner contained the following

information:

This is a Department of Defense computer system.
This computer system, including all related equipment,
networks and network devices (specifically including
Internet access), are provided only for authorized U.S.
Government use. DoD computer systems may be monitored for
all lawful purposes, including to ensure that their use is
authorized, for management of the system, to facilitate
protection against unauthorized access, and to verify
security procedures, survivability and operational
security. Monitoring includes active attacks by authorized
DoD entities to test or verify the security of this system.
During monitoring, information may be examined, recorded,
copied and used for authorized purposes. All information,
including personal information, placed on or sent over this
system may be monitored. Use of this DoD computer system,
authorized or unauthorized, constitutes consent to
monitoring of this system. Unauthorized use may subject
you to criminal prosecution. Evidence of unauthorized use
collected during monitoring may be used for administrative,

9
Id. at 541.
10
Id. at 543.

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United States v. Long, No. 05-5002/MC

criminal, or other adverse action. Use of this system
constitutes consent to monitoring for these purposes.

Mr. Asesor also explained that each individual user of the

computer system had his or her own unique password known only to

them. Users were required to change their password every ninety

days. As the network administrator, Mr. Asesor did not have

access to user passwords, and the only way he could access

individual accounts was to lock the individual user out of the

account. As the network administrator, Mr. Asesor was able to

access the entire network or any part of it, including personal

e-mails sent by individual users such as Appellee.

He testified that in conducting the monitoring described in

the banner, it was general policy to avoid examining e-mails and

their content because it was a “privacy issue.” Mr. Asesor

indicated that the examination and seizure of the e-mails in

this case were not related to the monitoring program and were

not the result of concerns about a security violation or

unauthorized use. Instead, he conceded that they were retrieved

as a part of a search for evidence of misconduct.

Based on these facts, the military judge denied the motion

to suppress. He concluded that this was a search for evidence;

there was not actual consent by the accused to this search; and

there was no search authorization issued by a commander. The

linchpin of the military judge’s ruling was that Appellee had no

reasonable expectation of privacy in the e-mail account. In

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United States v. Long, No. 05-5002/MC

explaining his conclusion, the military judge stated, “I find

that anyone who saw that banner on an ongoing basis would not

believe that they had a reasonable expectation of privacy in any

e-mails that were sent.”

THE COURT OF CRIMINAL APPEALS DECISION

The Navy-Marine Corps Court of Criminal Appeals examined

the case and concluded that the military judge should have

suppressed the e-mails.11 The court held that Appellee had a

reasonable expectation of privacy in the e-mails sent and

received on her government computer.12 The court further

indicated that the banner relied upon by the military judge to

find no privacy expectation may have limited Appellee’s

expectation of privacy with regard to non-law enforcement

monitoring of the computer system, but that the seizure of the

e-mails in this case was for law enforcement purposes.13 The

court then tested the error for prejudice and ultimately

concluded that the error was harmless beyond a reasonable

doubt.14

DISCUSSION

The Fourth Amendment of the Constitution protects

individuals, including servicemembers, against unreasonable

11
Long, 61 M.J. at 546.
12
Id.
13
Id.
14
Id. at 546-49.

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United States v. Long, No. 05-5002/MC

searches and seizures.15 We have described a search as an

official governmental intrusion into an individual’s reasonable

expectation of privacy.16 Whether such an expectation of privacy

exists is therefore a question in any search and seizure

analysis. The question is resolved by examining whether the

individual challenging the alleged intrusion had a subjective

expectation of privacy which was objectively reasonable.17 If

such an expectation is established, the inquiry then moves to

the remaining issues raised by the Fourth Amendment.

Official intrusions into protected areas in the military

require search authorization supported by probable cause, unless

they are otherwise lawful under the Military Rules of Evidence

(M.R.E.) or the Constitution of the United States as applied to

members of the armed forces.18

The determination of the reasonableness of an expectation

of privacy, “is understood to differ according to context.”19

The present case involves a military member’s claimed

expectation of privacy in e-mails sent and received on a

government computer. The Supreme Court has recognized that in

the context of the government workplace, employees may have a

15
United States v. Daniels, 60 M.J. 69, 70 (C.A.A.F. 2004).
16
Id. at 71.
17
Minnesota v. Olson, 495 U.S. 91, 95-96 (1990); United States
v. Monroe, 52 M.J. 326, 330 (C.A.A.F. 2000).
18
See M.R.E. 314(k).
19
O’Connor v. Ortega, 480 U.S. 709, 715 (1987) (plurality
opinion).

8
United States v. Long, No. 05-5002/MC

reasonable expectation of privacy against certain intrusions.20

However, “[p]ublic employees’ expectations of privacy in their

offices, desks, and file cabinets . . . may be reduced by virtue

of actual office practices and procedures, or by legitimate

regulation.”21 The rationale for this suggestion is the

“efficient and proper operation of the agency.”22 Thus, an

“employee’s expectation of privacy must be assessed in the

context of the employment relation.”23

If the practices of the workplace establish an environment

where the employee enjoys no reasonable expectation of privacy,

the underlying search and seizure issue is easy to resolve. In

such a situation the protections of the Fourth Amendment would

simply not apply. If an expectation of privacy is supported by

the workplace environment, however, the analysis must continue.

The Supreme Court instructs us that, in the government

workplace, a reasonable expectation of privacy may not provide

the employee with complete Fourth Amendment protection. The

Supreme Court, in O’Connor, concluded that the need for a search

warrant based on probable cause was not required for legitimate

workplace searches conducted by supervisors.24 Instead,

“[P]ublic employer intrusions on the constitutionally protected

20
Id. at 716.
21
Id. at 717.
22
Id. at 723.
23
Id. at 717.
24
Id. at 725.

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United States v. Long, No. 05-5002/MC

privacy interests of government employees for noninvestigatory,

work-related purposes, as well as for investigations of work-

related misconduct, should be judged by the standard of

reasonableness under all the circumstances.”25 This conclusion

was based on the Supreme Court’s recognition that “[W]hile

police, and even administrative enforcement personnel, conduct

searches for the primary purpose of obtaining evidence for use

in criminal or other enforcement proceedings, employers most

frequently need to enter the offices and desks of their

employees for legitimate work-related reasons wholly unrelated

to illegal conduct.”26

O’Connor, therefore, presents two situations where employer

searches into zones of privacy are legitimate even if not

supported by normal Fourth Amendment warrant and probable cause

requirements. The first exception is where the search is for

noninvestigatory, work-related purposes. The second is if the

search by the employer is investigatory but involves matters of

workplace misconduct. In either of these situations the search

is evaluated using the standard of reasonableness based on all

the surrounding facts and circumstances.27 When the

reasonableness standard is applicable, the government must

establish: (a) that the search “was justified at its

25
Id. at 725-26.
26
Id. at 721.
27
Id. at 725-26.

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United States v. Long, No. 05-5002/MC

inception”; and (b) that the conduct of the investigation was

“reasonably related in scope to the circumstances which

justified the interference in the first place.”28

We must note that the military workplace is not the usual

workplace envisioned by the Supreme Court in O’Connor. The

military workplace can range from an office building to a bunker

or tent in a combat zone. Similarly, military leaders and their

subordinates are different than civilian public officials and

their employees. Military commanders have authority and powers

not possessed by civilian employers. Military commanders, for

example, can authorize searches of their personnel,29 order them

confined,30 and bring criminal charges against them.31 Military

personnel operate in a system that provides criminal sanctions

for workplace misconduct.32 Accordingly, we need to keep these

unique aspects of the military environment in mind whenever we

apply the O’Connor decision to workplace searches.

As this is a case certified to this Court by the Judge

Advocate General of the Navy, we will focus our analysis on the

questions certified. We therefore turn to the ultimate question

presented: did Appellee have a reasonable expectation of

28
Id. at 726 (citations and quotation marks omitted).
29
M.R.E. 315(d)(1).
30
Article 9, UCMJ, 10 U.S.C. § 809 (2000).
31
Articles 22, 23, and 24, UCMJ, 10 U.S.C. §§ 822, 823, 824
(2000).
32
See, e.g., Article 86, UCMJ, 10 U.S.C. § 886 (2000), which
provides criminal sanctions for what would be addressed through
administrative measures in the civilian workplace.

11
United States v. Long, No. 05-5002/MC

privacy in the e-mail communications sent and received via the

Headquarters, Marine Corps (HQMC) computer network server?

As noted, in examining Fourth Amendment privacy interests,

the courts look first to whether the individual had a subjective

expectation of privacy.33 If the courts ascertain that a

subjective expectation of privacy exists, they then determine if

that expectation is one that society is prepared to accept as

reasonable.34

The first question is one of fact, which is reviewed using

a clearly erroneous standard.35 The second is one of law, which

we review de novo.36 In this case the military judge did not

differentiate between the subjective and objective expectations

of privacy. Instead, he simply concluded that there was no

expectation of privacy. For purposes of our discussion, we will

assume that the military judge found that any subjective

expectation of privacy held by Appellee was not objectively

reasonable and will review that determination de novo.

THE SUBJECTIVE EXPECTATION OF PRIVACY

This Court previously considered military members’

subjective expectations of privacy in Maxwell37 and Monroe.38 In

Maxwell, the accused used America Online’s (AOL) e-mail service

33
Olson, 495 U.S. at 95-96; Monroe, 52 M.J. at 330.
34
Ortega, 480 U.S. at 715.
35
United States v. Maxwell, 45 M.J. 406, 417 (C.A.A.F. 1996).
36
United States v. Reister, 44 M.J. 409, 413 (C.A.A.F. 1996).
37
45 M.J. at 417-19.
38
52 M.J. at 330.

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United States v. Long, No. 05-5002/MC

to communicate with another junior Air Force officer about the

accused’s sexual interests and to send and receive obscene

material and child pornography.39 This Court concluded that

Maxwell possessed a subjective expectation of privacy where it

was AOL’s policy to offer “contractual privacy protection,”

including nondisclosure of e-mail without a court order.40

In Monroe, this Court concluded that, in contrast to

Maxwell, the e-mail system in question was owned by the

government.41 We noted that Monroe’s subjective expectation of

privacy was not governed by contractual agreement, as in

Maxwell, and we concluded that, based on the totality of the

circumstances, Monroe had no expectation of privacy, at least

from persons maintaining the electronic mail host system.42

In making the case that she had an expectation of privacy,

Appellee argues that access to her computer and therefore her

e-mail account was protected by a password known only to her.

Indeed, the network administrator testified that he did not know

her password.

In response to the argument that Appellee’s password

created an expectation of privacy, the Government points out

that the passwords are required as a part of the government

computer security concerns in order to limit unauthorized access

39
45 M.J. at 414.
40
Id. at 417.
41
42 M.J. at 330.
42
Id.

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United States v. Long, No. 05-5002/MC

to the government system. Accordingly, the Government concludes

that passwords protect governmental interests, not individual

privacy concerns.

The Government relies most heavily on the log-on banner to

support its notion that Appellee could not have believed her e-

mail communications were private. The Government argues that

courts have looked at similar warnings and policies, and found

them sufficient to establish that the employee had no

expectation of privacy.43 Conversely, Appellee argues that the

language of the banner is not sufficient to remove her

expectation of privacy from unreasonable, warrantless searches

conducted for law enforcement purposes.

In light of the particular facts of this case, we conclude

that the lower court was not clearly erroneous in its

determination that Appellee had a subjective expectation of

privacy in the e-mails she sent from her office computer and in

the e-mails that were stored on the government server.

We conclude that the testimony of the network administrator

is the most compelling evidence supporting the notion that

Appellee had a subjective expectation of privacy. Mr. Asesor

repeatedly emphasized the agency practice of recognizing the

privacy interests of users in their e-mail. The fact that

43
See United States v. Simons, 206 F.3d 392, 398 (4th Cir.
2000); United States v. Angevine, 281 F.3d 1130, 1135 (10th Cir.
2002).

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United States v. Long, No. 05-5002/MC

Appellee had a password known only to her, supports Mr. Asesor’s

testimony regarding the attitude toward privacy and the lower

court’s conclusion that Appellee had a subjective expectation

that access to her e-mails was protected and severely limited.

Her subjective expectation was not diminished by the fact that

the password may also have served certain governmental

interests. The language of the log-on banner also confirms the

privacy interests testified to by Mr. Asesor. The banner

described access to “monitor” the computer system, not to engage

in law enforcement intrusions by examining the contents of

particular e-mails in a manner unrelated to maintenance of the

e-mail system. In summary, we find that the password and the

language of the banner, in light of Mr. Asesor’s testimony,

support the lower court’s conclusion that Appellee met her

burden of demonstrating a subjective expectation of privacy.

THE REASONABLENESS OF THE PRIVACY EXPECTATION

In O’Connor, the Supreme Court recognized that there may be

an expectation of privacy in a government workplace but that

there is no talisman for determining the reasonableness of such

an expectation in cases involving public employees.44 Instead,

the reasonableness of a privacy expectation will differ

according to the context, and the “operational realities of the

44
480 U.S. at 715.

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United States v. Long, No. 05-5002/MC

workplace.”45 M.R.E. 314 discusses searches not requiring

probable cause, and subsection (d) of M.R.E. 314 deals

specifically with searches of government property. M.R.E.

314(d), which is consistent with the holding in O’Connor,

indicates that searches of government property may be made

without probable cause unless an individual has a reasonable

expectation of privacy in that property and that the

determination of the reasonableness of an expectation of privacy

“depends on the facts and circumstances at the time of the

search.”

The e-mails seized in this case were originally prepared in

an office in HQMC on a computer owned by the Marine Corps and

issued to Appellee. They were transmitted over the HQMC network

system, stored on the HQMC server, and retrieved by the HQMC

network administrator. Each of those factors might arguably fit

a situation where society would be unwilling to recognize an

individual expectation of privacy.46 Other evidence in this

case, however, convinces us that Appellee’s subjective

expectation of privacy in these e-mails is one that society is

prepared to accept as reasonable.

We consider the testimony of Mr. Asesor, the network

administrator, describing the agency practices and policies to

be most persuasive. We look to office practices because the

45
Id. at 717.
46
See Bond v. United States, 529 U.S. 334, 338 (2000).

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United States v. Long, No. 05-5002/MC

Supreme Court in O’Connor indicated that privacy expectations in

the workplace may be reduced by virtue of office practices,

procedures, or regulation.47 In this case, the policies and

practices of HQMC reaffirm rather than reduce the expectations

regarding privacy on office computers. These policies, among

other things, require individual users to have passwords known

only to themselves and to change their passwords periodically to

ensure privacy. Additionally, these policies limit outside

network access to the network administrator and describe very

limited conditions under which he would monitor the network for

unauthorized use.

The testimony of the Government’s witness about policies

and practices is strong evidence that Appellee’s subjective

expectation of privacy was objectively reasonable. Mr. Asesor

explained that HQMC’s policy regarding using the network to send

personal e-mails had always been lenient and that such use of

the network was considered authorized. Mr. Asesor further

testified that when doing the testing and monitoring of the

network, he did not monitor individual accounts because “it’s a

privacy issue.”

This Court in Monroe held that a military member did not

have a reasonable expectation of privacy with respect to the

47
480 U.S. at 717.

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United States v. Long, No. 05-5002/MC

content of e-mail messages.48 In Monroe, we held that the

appellant, despite any subjective expectation of privacy, had no

objectively reasonable expectation of privacy because the

incriminating e-mails were discovered as part of the routine

monitoring described in the log-on banner message in use.49

The totality of the circumstances in this case leads us to

conclude that, unlike in Monroe, Appellee’s expectation of

privacy was objectively reasonable. The HQMC log-on banner

explained that the network administrator had access to

Appellee’s computer as a “monitoring” function. The e-mails

retrieved in this case were from Appellee’s account on an

unclassified government computer system on which she was

authorized limited personal use and were not obtained for

maintenance or monitoring purposes. Mr. Asesor testified that

prior to accessing Appellee’s e-mail account, he had no

information based on his previous monitoring that she was using

her account in an unauthorized manner. As noted, Mr. Asesor

further testified that he retrieved Appellee’s e-mails to look

for evidence of misconduct. If Mr. Asesor had been doing the

monitoring described in the log-on banner when he came across

Appellee’s incriminating e-mails, this case would fall within

the parameters of O’Connor and Monroe, thus presenting a

different analytic framework and potentially a different result.

48
52 M.J. 330.
49
Id.

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United States v. Long, No. 05-5002/MC

Instead, Mr. Asesor confirmed that the sole purpose of seizing

the e-mails was to search for evidence of misconduct.

Accordingly, this case is not like Monroe where the

incriminating e-mail evidence was found inadvertently by

personnel performing routine systems maintenance described in

the log-on banner. To the contrary, the evidence seized in this

case was done so as a part of a search for law enforcement

purposes.50

The result we reach in this case is not inconsistent with

other federal court decisions that have considered similar

situations and found no privacy expectation. In Simons,51 the

court was dealing with a very different, very specific policy

regarding use of the computer system. In Simons the Internet

policy both restricted use, including e-mail use, to official

government business and indicated to employees that ongoing use

of the system was subject to audit and inspection.52 In the

present case, however, Appellee was authorized to use the

government computer for personal use and the banner described a

less intrusive monitoring program directed to unauthorized use.

In Angevine, the log-on banner expressly informed the employee

that e-mail messages “contain no right of privacy or

50
See Long, 61 M.J. at 541.
51
206 F.3d at 396.
52
Id.

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United States v. Long, No. 05-5002/MC

confidentiality.”53 The banner in the instant case did not

provide Appellee with notice that she had no right of privacy.

Instead, the banner focused on the idea that her use of the

system may be monitored for limited purposes.

Based on our review of precedent and the totality of the

circumstances in this case, we conclude that while the log-on

banner may have qualified Appellee’s expectation of privacy in

her e-mail, it did not extinguish it. Simply put, in light of

all the facts and circumstance in this case, the “monitoring”

function detailed in the log-on banner did not indicate to

Appellee that she had no reasonable expectation of privacy in

her e-mail.

Based on this evidence, we conclude that Appellee’s

expectation of privacy was, in fact, recognized as reasonable by

virtue of the rules, regulations, practices, and procedures of

HQMC. Accordingly, her subjective expectation of privacy was

one which society is prepared to recognize as reasonable.

THE EXPECTATION OF PRIVACY –- CONCLUSION

The fact that the seizure of Appellee’s e-mails in this

case was solely for law enforcement purposes is not in dispute.

While government employers may need to enter an employee’s

office space or intrude into an employee’s computer or e-mail

account for work-related reasons, searches conducted for the

53
281 F.3d at 1133 (emphasis added).

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United States v. Long, No. 05-5002/MC

primary purpose of obtaining evidence of illegal conduct require

probable cause.54 As this search went beyond work-related

monitoring or an investigatory search of work-related

misconduct, it was not one exempt from the probable cause

requirement. Thus, to be admissible, the evidence obtained in

the search must have been pursuant to authorization.55 Because

there was no command authorization, the evidence should have

been suppressed.56

HARMLESS ERROR

After concluding that the search was unreasonable and that

Appellee’s e-mails should have been suppressed, the Court of

Criminal Appeals determined that the error was harmless beyond a

reasonable doubt.57 Appellee, in her cross-appeal, takes issue

with this conclusion.

54
O’Connor, 480 U.S. at 724.
55
See M.R.E. 314; M.R.E. 315.
56
Even if this had been an intrusion for noninvestigatory, work-
related purposes or an investigation of work-related misconduct
which, under O’Connor, would have been measured by a
reasonableness standard, the Government would still fail.
O’Connor requires the government to demonstrate reasonableness
by showing that: (a) the search “was justified at its
inception”; and (b) the conduct of the investigation was
“reasonably related in scope to the circumstances which
justified the interference in the first place.” 480 U.S. at 726
(citations and quotation marks omitted). In the case at bar,
the Government presented no evidence on either question and
relied solely on the argument that Appellee had no reasonable
expectation of privacy.
57
Long, 61 M.J. at 546-49 (citing United States v. Simmons, 59
M.J. 485, 489 (C.A.A.F. 2004); Neder v. United States, 527 U.S.
1, 15 (1999)).

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United States v. Long, No. 05-5002/MC

After reviewing all the evidence, we agree with Appellee.

The lower court concluded that the witnesses for the Government

were “credible, uniform, and detailed in their testimony

regarding the appellant’s unlawful drug use,”58 which was in

sharp contrast to the defense witnesses whom the lower court

found to be less than credible because they all had “significant

motive to fabricate.”59

Although the lower court’s skepticism regarding the

credibility of the defense witnesses may be well founded, there

are substantial reasons why one might be equally skeptical of

the credibility of the Government witnesses. The prosecution

witnesses were all admitted drug users who had incentives to

testify for the Government in this case. Additionally, they

were all potential accomplices and the court members were

instructed by the military judge that their testimony should

therefore be viewed with great caution.

Perhaps most important to our determination of the harmless

error issue is trial counsel’s reliance on the e-mails in his

presentations to the court members. Trial counsel ended his

opening statement referring to the importance of those e-mails

because they were Appellee’s own account of her worries and

fears about upcoming urinalysis testing.

58
Id. at 548.
59
Id.

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United States v. Long, No. 05-5002/MC

Similarly, the subject of Appellee’s e-mails was emphasized

in trial counsel’s closing argument. In discussing the members’

task of evaluating the evidence, trial counsel explained that

the evaluation is made much easier by the e-mails, which contain

Appellee’s own words. He then proceeded to read from several of

the e-mails and concluded by saying: “Gentlemen, I submit to

you, if there was anything even resembling reasonable doubt,

those e-mails should pretty much clear that up.”

Whether error is harmless beyond a reasonable doubt is a

question of law reviewed de novo.60 The burden is on the

Government to show whether “it appears beyond a reasonable doubt

that the error complained of did not contribute to the verdict

obtained.”61

In Simmons, we concluded that the error in admitting

certain evidence was not harmless beyond a reasonable doubt when

trial counsel in that case “referred to the illegally seized

letter in the beginning, middle, and end of his closing

argument.”62 We are faced with almost identical facts in this

case, where constitutionally inadmissible evidence was a

60
Chapman v. California, 386 U.S. 18, 24 (1967); Arizona v.
Fulminate, 499 U.S. 279 (1991).
61
Mitchell v. Esparza, 540 U.S. 12, 16 (2003) (per curiam)
(quoting Neder, 527 U.S. at 15 (quotation marks omitted); see
also United States v. Hall, 58 M.J. 90, 94 (C.A.A.F. 2003);
Simmons, 59 M.J. at 489.
62
Simmons, 59 M.J. at 491.

23
United States v. Long, No. 05-5002/MC

cornerstone of trial counsel’s opening statement and his closing

argument.

Trial counsel obviously felt that the e-mails were very

important to his case. We agree. Accordingly, we cannot

conclude that the erroneous admission of the e-mails was

harmless beyond a reasonable doubt.

CONCLUSION

The certified questions are answered in the negative: the

United States Navy-Marine Corps Court of Criminal Appeals did

not err when it found that Appellee had a subjective expectation

of privacy in her e-mail communications. Further, we hold that

the lower court did not err when it concluded that Appellee’s

privacy expectation was reasonable. Because we are not

convinced that the error in admitting the e-mail communications

was harmless beyond a reasonable doubt, we decide the granted

issue in favor of Appellee. Accordingly, the findings and

sentence are set aside. The record of trial is returned to the

Judge Advocate General of the Navy. A rehearing is authorized.

24
United States v. Long, No. 05-5002/MC

CRAWFORD, Judge (dissenting):

I respectfully dissent from the majority’s holding that

despite the Department of Defense (DoD) log-on banner and

Appellee’s consent to monitoring, she had both the subjective

and objective expectation of privacy in e-mails seeking advice

from her friends regarding concealing her drug use. This case

impacts on the DoD policy as set forth in the banner. “DoD

computer systems may be monitored for all lawful purposes

. . . . Use of this DoD computer system, authorized or

unauthorized, constitutes consent to monitoring of this system.”

This banner, which appears on nearly all DoD systems,

constitutes consent to monitoring. See Scott A. Sundstrom,

You’ve Got Mail! (And the Government Knows It): Applying the

Fourth Amendment to Workplace E-mail Monitoring, 73 N.Y.U. L.

Rev. 2064, 2090 (1998) (citing Scot L. Gulick, Memorandum from

Office of General Counsel to All Computer Users, The Standards

of Ethical Conduct (United States Department of Defense), Sept.

1997, at 1). Our analysis should determine whether there is

coverage and protection under the Fourth Amendment.∗ See, e.g.,

∗
Since 1960, this Court has held that the Bill of Rights applies
to servicemembers “except those [rights] which are expressly or
by necessary implication inapplicable.” United States v.
Jacoby, 11 C.M.A. 428, 430-31, 29 C.M.R. 244, 246-47 (1960); cf.
Davis v. United States, 512 U.S. 452, 457 n.* (1994) (Supreme
Court has “never had occasion to consider whether Fifth
Amendment privilege . . . applies of its own force to the
military . . . .”); United States v. Taylor, 41 M.J. 168, 171
United States v. Long, No. 05-5002/MC

Taylor, 41 M.J. at 170. The question hinges on whether Appellee

had a subjective and objectively reasonable expectation of

privacy. Katz v. United States, 389 U.S. 347, 361 (1967)

(Harlan, J., concurring). If there is, what protection does

Appellee deserve?

In United States v. Monroe, 52 M.J. 326, 330 (C.A.A.F.

2000), we held that a defendant does not have an expectation of

privacy in his e-mail, “at least from the personnel charged with

maintaining the EMH [electronic mail host] system.” We left

open the issue presented in this particular case. Here the

Government banner removes any subjective or objective

expectation of privacy by requiring all employees to consent to

monitoring before they may use their computers. See Wyman v.

James, 400 U.S. 309, 318-24 (1971)(notice to welfare benefits

recipient was factor in determining no violation of the Fourth

Amendment).

The majority mistakenly believes that an objective

reasonable expectation of privacy can be preserved for some

forms of seizure despite being nonexistent for others. The

majority cites no legal authority to support this position.

Once Appellee was given notice of and consented to monitoring of

(C.M.A. 1994) (application of Bill of Rights “is not only of
academic importance, but also it is important to the President
in deciding what rules should be applied to the military”).

2
United States v. Long, No. 05-5002/MC

any kind, she could not maintain a reasonable expectation of

privacy against other forms of intrusion. As the Supreme Court

writes, “‛Once frustration of the original expectation of

privacy occurs, the Fourth Amendment does not prohibit

governmental use of the . . . information . . . .’” Georgia v.

Randolph, 126 S. Ct. 1515, 1534 (2006) (quoting United States v.

Jacobsen, 466 U.S. 109, 117 (1984)). Knowledge of actual

monitoring negates any reasonable expectation of privacy. See

United States v. Hatcher, 323 F.3d 666, 674 (8th Cir. 2003)

(holding prisoners and their attorneys had no reasonable

expectation of privacy since they knew their conversations were

being recorded); United States v. Madoch, 149 F.3d 596, 602 (7th

Cir. 1998) (no spousal privilege when communicating to an

inmate, knowing that inmate communications are monitored).

Appellant in the present case was aware of and consented to the

monitoring and archiving of electronic communications

originating from her government computer. She therefore could

not have a reasonable expectation of privacy in those

communications. That the communications were obtained

specifically for law enforcement purposes has no bearing on her

expectation of privacy.

The majority cuts too fine a line in trying to distinguish

applicable federal precedent based on the wording of the banner.

The majority states that United States v. Angevine, 281 F.3d

3
United States v. Long, No. 05-5002/MC

1130, 1133 (10th Cir. 2002), is not applicable because in that

case, the banner included the explicit term, “contain no right

of privacy or confidentiality.” While a rewording of subsequent

DoD Internet usage banners may be advisable, the language of the

banner at issue here leaves no doubt as to its invasiveness:

“All information, including personal information, placed on or

sent over this system may be monitored.” The majority seems to

think that the average servicemember would not understand the

plain meaning of that sentence without the magical phrase “no

expectation of privacy.” This conclusion is disconcerting. The

majority ignores a number of other cases with less specific

banner language where the courts found no reasonable expectation

of privacy. See Kaufman v. SunGard Inv. System,

No. 05-CV-126(JLL), 2006 U.S. Dist. LEXIS 28149, at *12, 2006 WL

1307882, at *4 (D.N.J. May 9, 2006)(letter-opinion and order);

Muick v. Glenayre Elec., 280 F.3d 741, 743 (7th Cir. 2002);

United States v. Simons, 206 F.3d 392, 398 (4th Cir. 2000). The

purpose of the banner was to give notice that computer activity

would be monitored, and as imprecise as it may be, the language

of the banner unambiguously conveyed that message.

The majority also attempts to distinguish Simons based on

the “very specific policy regarding use of the computer system”

in that case. This is a distinction that should not be made.

As stated above, a reasonable expectation of privacy is not

4
United States v. Long, No. 05-5002/MC

divisible. The majority refuses to directly acknowledge

applicable federal precedent on this issue. In doing so, they

ignore a clear trend in the federal courts that there is no

expectation of privacy in situations, like this one, where there

is a DoD banner clearly announcing a departmental monitoring

policy. When an employee knows that an employer is monitoring

his or her e-mail, there cannot be a reasonable expectation of

privacy, especially when the employee is notified each time that

logging on constitutes consent to monitoring.

The court noted in Simons, 206 F.3d at 398, that “office

practices, procedures, or regulations may reduce legitimate

privacy expectations.” Likewise, in Angevine, 281 F.3d at 1134,

the court held that a university professor had no expectation of

privacy to files erased on his computer because the university’s

“policy explicitly cautions computer users that information

flowing through the University network is not confidential

either in transit or storage on a University computer.” Thus,

university users were aware that administrators and others had

free access to the downloaded Internet material. The court held

that deleting the files “was not sufficient to establish a

reasonable expectation of privacy.” Id. at 1135. “[G]iven the

absence of the city policy placing [defendant] Slanina on notice

that his computer use would be monitored and the lack of any

indication that other employees had routine access to his

5
United States v. Long, No. 05-5002/MC

computer, we hold that Slanina’s expectation of privacy was

reasonable.” United States v. Slanina, 283 F.3d 670, 677 (5th

Cir. 2002), vacated on other grounds by 537 U.S. 802 (2002).

In United States v. Bailey, 272 F. Supp. 2d 822, 835-36 (D.

Neb. 2003), the court held that a defendant had no reasonable

expectation in his computer at his civilian work site which had

a log-on banner. The log-on banner stated:

These computer resources are solely owned by the
Company. Unauthorized access or use is a violation of
federal law and could result in criminal prosecution.
Users agree not to disclose any company information
except as authorized by the company. Your use of this
computer system is consent to be monitored and
authorization to search your personal computer to
assure compliance with company policies.

Id. at 831. The company’s policy available to the workers

said:

It is critical that all agents, employees,
suppliers and vendors understand these information
security policies and comply with them when accessing
and using American Family’s electronic resources. All
of us -- as individuals and as a Company -- will be
held accountable for knowing and adhering to these
policies. Each of us as individuals and as a Company
can be held liable for failing to comply with these
policies.

Id. at 832.

Additionally, the company policy posted on the Intranet

site explained that while personal use of computers was not

prohibited, it could not be used for unlawful purposes, and the

workers had “no expectation of privacy associated with the

6
United States v. Long, No. 05-5002/MC

information they store in or send through these systems.” Id.

at 832, 836. As to the expectation of privacy, the court

stated:

Absent a legitimate and constitutionally protected
expectation of privacy in e-mail files, defendant
cannot successfully assert a Fourth Amendment
violation. United States v. Bach, 310 F.3d 1063, 1066
(8th Cir. 2002). Factors relevant to determining if a
legitimate expectation of privacy exists include
ownership, possession and/or control of the area
searched or item seized; the defendant’s historical
use of the property or item; whether the defendant can
exclude others from that place; whether he took
precautions to maintain the privacy; and whether the
defendant had a key to the premises.

Id. at 834-35.

The fact that an individual has a password does not change

the expectation of privacy. Garrity v. John Hancock Mut. Life

Ins. Co., No. 00-12143-RWZ, 2002 U.S. Dist. LEXIS 8343, at *5-

*6, 2002 WL 974676, at *2 (D. Mass. May 7, 2002); see also

Bailey, 272 F. Supp. 2d at 835-37 (the facts, including

“employer’s notice [that] . . . internet use[] and e-mail may be

monitored,” undermine[] an employee’s claim that the information

was private and “any expectation of privacy that the employee

has is not one that society is willing to accept and protect”).

In Smyth v. Pillsbury Co., 914 F. Supp. 97, 101 (E.D. Pa. 1996),

the court indicated that an employee has no reasonable

expectation of privacy in e-mail because “the company’s interest

in preventing inappropriate and unprofessional comments or even

7
United States v. Long, No. 05-5002/MC

illegal activity over its e-mail system outweighs any privacy

interest the employee may have in those comments.”

The majority improperly uses Appellee’s authorization for

personal use of her e-mail account to support their finding of a

reasonable expectation of privacy. However, her personal

account was her work account and Appellee’s communications fall

within the scope of work-related communications. Appellee

discussed her diminished ability to perform her job as well as

her appearance at work in e-mails sent to Ms. KS between 9:46

a.m. and 1:07 p.m. on August 15, 2000, the day of her urinalysis

test. The times the e-mails were sent indicate that they were

sent while she was at work. The systems administrator testified

that the e-mail accounts were “authorized specifically for doing

your job within DOD” and that personal use is something they

have been “lenient on allowing.” The distinction between a

work-related e-mail and e-mail unrelated to work would be

difficult, if not impossible, to make in many instances.

The perception of one administrator in a department as

large as the DoD, with over 2.5 million servicemembers,

excluding civilians, is not binding on the department itself.

The belief of an administrator is even more attenuated

considering how computers are used on the job. Cf. United

States v. Muniz, 23 M.J. 201, 206 (C.M.A. 1987) (“[W]e note that

the credenza, like any other item of Government property within

8
United States v. Long, No. 05-5002/MC

the command, was subject at a moment’s notice to a thorough

inspection. That omnipresent fact of military life, coupled

with indisputable government ownership and the ordinarily

nonpersonal nature of military offices, could have left

appellant with only the most minimal expectation -- or hope --

of privacy.” (citation omitted)).

As the United States Court of Appeals for the Ninth Circuit

stated in United States v. Ziegler, 456 F.3d 1138, 1146 (9th

Cir. 2006), “Employer monitoring is largely an assumed practice,

and thus we think a disseminated computer-use policy is entirely

sufficient to defeat any expectation that an employee might

nonetheless harbor.” Every time Appellee turned on her

computer, she was aware of the computer-use policy of her

service and could not have a reasonable expectation of privacy.

While the Supreme Court has not heard an e-mail case, the

Supreme Court’s expectation of privacy approach applies.

Certainly, the possibility of exposure to the public eye

diminishes or alleviates one’s expectation of privacy, and

undoubtedly when one is so warned of monitoring, there is no

expectation of privacy. Just as the Supreme Court indicated,

there is no reasonable expectation of privacy in numbers dialed

on a telephone because “[w]hen he used his phone, petitioner

voluntarily conveyed numerical information to the telephone

company and ‘exposed’ that information to its equipment in the

9
United States v. Long, No. 05-5002/MC

ordinary course of business.” Smith v. Maryland, 442 U.S. 735,

744 (1979), superseded by statute, Electronic Communications

Privacy Act of 1986, 18 U.S.C. § 3121(a) (2000). Similarly, as

to business records, the Supreme Court indicated that financial

statements and deposit slips are “voluntarily conveyed to the

banks and exposed to their employees.” United States v. Miller,

425 U.S. 435, 442 (1976), superseded by statute, Right to

Financial Privacy Act of 1978, 12 U.S.C. § 3401 (2000), as

recognized in SEC v. Jerry T. O’Brien Inc., 467 U.S. 735, 745

(1984). Based on the hierarchy as to sources of rights, a

statute can grant more rights than the Fourth Amendment. See

United States v. Lopez, 35 M.J. 35, 39 (C.M.A. 1992). Thus,

there is no expectation of privacy. Miller, 425 U.S. at 443-44.

One “takes the risk, in revealing his affairs to another,

that the information will be conveyed by that person to the

Government,” id. at 443, thus providing a basis for the

conclusion that the subscriber lacks an expectation of privacy

in communications held by a service provider, especially when

there is a log-on notice and no statutory protection.

Even when there is a reasonable expectation of privacy, one

of the exceptions is consent to search. Consent is such that

one would not rely upon an assumption of risk that the service

provider would not reveal this information to law enforcement

officials. Hoffa v. United States, 385 U.S. 293, 302-03 (1966).

10
United States v. Long, No. 05-5002/MC

Likewise, in Lopez v. United States, 373 U.S. 427, 465 (1963),

the Supreme Court acknowledged that a conversation

surreptitiously recorded by a government agent was admissible

even though there was no prior judicial authorization for the

recording. See also Osborn v. United States, 385 U.S. 323, 327-

31 (1966) (holding that a tape-recorded conversation based on

surreptitious surveillance was properly admitted). Certainly, a

communicator’s expectation of privacy is not reasonable once he

or she has given consent to search. Expectation of privacy is

also lessened when the user recognizes that his or her

communications are recorded. Where consent is given to an

administrator or someone with mutual use of the property, see

United States v. Matlock, 415 U.S. 164, 171 (1974), the

originators of e-mail assume the risk that the administrator may

give consent to law enforcement officials. This is not an

instance where the police went to the Internet provider as in

United States v. Maxwell, 45 M.J. 406, 412 (C.A.A.F. 1996). The

possession of the password means that this information is

protected against other individuals logging onto Appellee’s

computer or to another computer and trying to obtain her

e-mails. The password is not a protection against the systems

administrator or law enforcement. For the aforementioned

reasons, I respectfully dissent.

11