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Unformatted text preview: ivacy, American Values, and the Law, 72 CHI.-KENT
L. REV. 221, 226 (1996) ("[T]o the extent the reasonableness of the legitimate
expectation of privacy is determined on objective grounds, it would rest upon employer
policies, practices, or assurances in the matter.... [T]his bids fair to eviscerate any claim
to privacy at all." (citation omitted)). But in applying the Fourth Amendment we take
societal expectations as they are, not as they could or (some think) should be. See United
States v. Silva, 247 F.3d 1051, 1055 (9th Cir.2001) (noting that "[t]he reasonableness of
an expectation of privacy is evaluated ... '[by reference] to understandings that are 85 recognized and permitted by society' " (quoting Rakas v. Illinois, 439 U.S. 128, 143 n.
12, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978))).
Thus, given the nature of our constitutional inquiry, we think the California court's
reasoning is compelling. Social norms suggest that employees are not entitled *1146 to
privacy in the use of workplace computers, which belong to their employers and pose
significant dangers in terms of diminished productivity and even employer liability. Thus,
in the ordinary case, a workplace computer simply "do[es] not provide the setting for
those intimate activities that the [Fourth] Amendment is intended to shelter from
government interference or surveillance." Oliver v. United States, 466 U.S. 170, 179, 104
S.Ct. 1735, 80 L.Ed.2d 214 (1984); see also Muick, 280 F.3d at 743 ("[T]he abuse of
access to workplace computers is so common (workers being prone to use them as media
of gossip, titillation, and other entertainment and distraction) that reserving a right of
inspection is so far from being unreasonable that the failure to do so might well be
thought irresponsible."). 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.
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This note was uploaded on 09/30/2012 for the course ENC 102 taught by Professor Deria during the Spring '08 term at FIU.
- Spring '08