United States v. Larson
66 M.J. 212, 2008 WL 1868017, 2008 CAAF LEXIS 532 (2008)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
A government employee does not have a reasonable expectation of privacy under the Fourth Amendment in a government-issued computer when they are on notice that their activity may be monitored, such as through a login banner acknowledging consent to monitoring.
Facts:
- Major Larson, an Air Force officer, used his government-issued computer in his military office to obtain sexually explicit material and engage in instant message conversations.
- He communicated with someone he believed to be a 14-year-old girl named 'Kristin,' who was actually a civilian police detective.
- Larson arranged to meet 'Kristin' at a local mall.
- When Larson arrived at the pre-arranged meeting spot, police arrested him.
- Following the arrest, agents from the Air Force Office of Special Investigations (AFOSI) entered Larson's office with his commander's permission and seized his government computer.
- A subsequent search of the computer's hard drive revealed pornographic images and sexually explicit chat logs.
- Each time Larson logged onto the computer, a banner appeared stating it was Department of Defense property for official use and that by using it, he consented to monitoring.
Procedural Posture:
- At his general court-martial, Appellant Larson filed a motion to suppress evidence found on his government computer, arguing the warrantless search was unconstitutional.
- The military judge at the trial court level denied the motion, finding Larson had no reasonable expectation of privacy.
- The court-martial convicted Larson on multiple specifications.
- The convening authority approved the sentence but reduced the term of confinement.
- Larson (as Appellant) appealed to the United States Air Force Court of Criminal Appeals.
- The Air Force Court of Criminal Appeals (an intermediate appellate court) affirmed the findings and sentence.
- The United States Court of Appeals for the Armed Forces (the highest military court) granted review of the case.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does a government employee have a reasonable expectation of privacy under the Fourth Amendment in a government-issued office computer when a login banner explicitly states the user consents to monitoring and system administrators have access to the machine?
Opinions:
Majority - Judge Ryan
No. A government employee does not have a reasonable expectation of privacy in a government computer under these circumstances. The court analyzed the issue under the totality of the circumstances and held that several factors negated any reasonable expectation of privacy. First, under Military Rule of Evidence 314(d), there is a rebuttable presumption that no privacy expectation exists in government property not issued for personal use. Second, the login banner put Larson on notice that his use was subject to monitoring and that by proceeding, he consented to it. Third, both his commander and system administrators could access the computer, undermining any claim of exclusive control. The court distinguished this case from United States v. Long, where agency practice supported an expectation of privacy, by noting that here, all evidence pointed to a lack of privacy.
Concurring - Chief Judge Effron
This opinion does not directly answer the Fourth Amendment issue. Chief Judge Effron concurs in the judgment, agreeing that any error by counsel in conceding guilt on one charge was not prejudicial under Strickland. However, he would defer deciding the broader Sixth Amendment question of whether counsel must obtain an accused's consent before making such a strategic concession until a case with a more developed record is presented.
Analysis:
This decision reinforces the principle that government employees have a significantly diminished expectation of privacy in their workplace technology. It clarifies that explicit policies, like login monitoring banners, are highly effective at defeating Fourth Amendment claims regarding warrantless searches of government computers. The ruling provides a clear signal that notice of monitoring and third-party administrative access are key factors that eliminate an employee's reasonable expectation of privacy. This precedent makes it substantially easier for government employers, including the military, to investigate employee misconduct by searching workplace computers without a warrant.
