Communications Privacy in the Military

79 Pages Posted: 22 Sep 2009 Last revised: 23 Nov 2010

Justin G. Holbrook

Widener University School of Law

Date Written: September 21, 2009

Abstract

In the wake of the 1996 case of United States v. Larson, in which the Court of Appeals for the Armed Forces held that a service member held a right to privacy in her workplace e-mail, the Department of Defense issued a DoD-wide policy requiring DoD employees to consent to e-mail monitoring, interception, and seizure for any purpose - including law enforcement. With military members deployed to Iraq and Afghanistan relying exclusively on government information systems to communicate daily with friends and family, the DoD policy arguably violates core Fourth Amendment privacy protections.

Proceeding from a discussion of first principles in military privacy to the four seminal military cases involving communications privacy expectations, I address the constitutional implications of the DoD policy, exploring whether it unconstitutionally warrants searches for law enforcement purposes. I conclude with a normative appeal for military courts and the DoD to follow the Supreme Court’s reasoning in O’Connor v. Ortega and distinguish work-related from law enforcement searches.

With both civilian and military law in flux over the scope of privacy expectations in workplace electronic communications, my aim is to provide timely, considered guidance to courts, policy makers, and practitioners in determining what service members should expect from a normative perspective as they use government information systems to communicate with family and friends.

Keywords: Fourth Amendment, military, e-mail, workplace, privacy

JEL Classification: K19

Suggested Citation

Holbrook, Justin G., Communications Privacy in the Military (September 21, 2009). Berkeley Technology Law Journal, Vol. 25, 2010; Widener Law School Legal Studies Research Paper No. 10-27. Available at SSRN: https://ssrn.com/abstract=1476568 or http://dx.doi.org/10.2139/ssrn.1476568

Justin G. Holbrook (Contact Author)

Widener University School of Law ( email )

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