Thanks to a reader who alerted us that Volume 60 of the Naval Law Review is now online here.  We military justice wonks will be particularly interested in LtCol Leon James Francis’s article, The Shipboard Pandora’s Box:  The Operational Reality that an Expectation of Privacy Exists in Electronic Communications Aboard Naval Vessels, 60 Naval L. Rev. 93 (2010).

2 Responses to “New issue of Naval Law Review online”

  1. John O'Connor says:

    LtCol Francis’s article is forceful and well presented, and I recommend it to anyone interested in Fourth Amendment law in the military context. While the arguments in the article are well presented, I’m not sure I agree with the ultimate conclusion.

    I see the main thesis in the article as being that the Navy, for lots of good reasons (including morale), allows lots of personal use of government computers aboard ships at sea, and this reality of government-sanctioned personal use should carry with it a reasonable expectation of privacy in at least some personal uses of government computers. Essentially, because sailors and Marines are stuck on a ship, they do things on government computers that are ordinarily done on personal computers, and their expectation of privacy should not be diminished because they are forced to conduct their affairs on a government computer by virtue of their deployment instead of the personal computer they might use ashore.

    My tentative thought is that the reality that government computers are used for personal matters does not lead to a greater expectation of privacy in government computer use than would exist with respect to government computer use in garrison. Rather, this reality means that there is less of a reasonable expectation of privacy in shipboard computer use (because, forced or not, the sailor or Marine is using a government computer) than would exist if the sailor or Marine was in garrison and using his or her own computer. So I’m not sure that Fourth Amendment rights in government computer use become greater once at sea, I think they might be exactly the same as in garrison.

    Again, these thoughts are tentative and I acknolwedge that reasonable minds might disagree and I might be wrong. Regardless, the article is thought-provoking and well worth the read.

  2. Anonymous says:

    Concur in the recommendation and assessment of the article. As to its ultimate conclusions, they reflect what have I observed for some time now. Notwithstanding our own narrow legal/law enforcement perspectives, the broader interests of the service are advanced by recognizing some limited expectation of privacy on the part of users of a government communications system. We certainly recognize this with regards to the use of other government property (barracks, lockers, etc.), I can’t understand why we’ve failed to recognize it with regards to the use of government computer systems.

    I think we’d serve our clients — personal and institutional — better if we carefully analyzed the limits of the expectation of privacy, rather than simply concluding there never is one.

    As a personal matter, it also drives me nutty trying to figure out the reasoning behind current Navy legal policy holding one should “never” request consent or seek a search authorization for government computers. Even if the “no reasonable expectation of privacy” position is correct, I’d think it’s always safer to at least ask for consent/authorization.