to obtain computer files for brokers wrote place filing watersports amendment rights because she had a reasonable expectation of privacy in her emails and her computer computer or penn state university let me ask you a question the award qualified immunity and if you know there is no question i gather that  subpoena to try to get information and can any government employee who uses improper means she would she would then get qualified immunity in the said improper means by government employees should that preclude them from getting a fight immunity yes well you put your finger on something when you talk about the right we have to ask whether there whether she had any expectation of privacy right yes you do your honor ok and on that you've argued in your brief firstly that this is all clearly established that there is a fourth amendment right but  above the record of cases out there are a little less thing clear on that when you're talking not about a third party internet service provider but about an employee we employee relationship an employer provided provided e mail the u i i think that is the clearest instance where the right is clearly established surely i thought i thought what was more clear was that when an employee is operating using an employer's platform that typically the employee knows that employer can look over their shoulder when they want to how's that how does that make it clear that there's an expectation of privacy i think you at the mere fact that the employer has the right to look at the employee's email mean there isn't an expectation of privacy no why is that because the the  requirement and neither of those cases does anything to undermine the the standard and miku seton d for tag where the main cause he's a law enforcement  about the legal principle in the abstract in the abstract for the right to be clearly established your argument has to be i take it it is that what was true  also be true an employer employee relationship bed is those same things that underlie a work requirement binded employer had an employer has to do the sorts of things that a law enforcement off it would recognize an exception to the fourth amendment requirement when an employer for reasons that is central to the to the employment relationship needs to look into files of the employee say they are misusing their computer system for using pornography on the computer system or happen in the computer system under those kinds of special two thousand and seven but there's two aspects to this there is penn state as an employer and you have to look at that the role as an employer and the expectation of privacy as an employer the second way of looking at it is penn state as an i a state and i think your eyes question is directed to the second way of looking at them and one of this motion to dismiss we don't know at this point in time how this was treated at it we don't know how the search was conducted and i think all these are factors is is that is that are those things relevant to that that they prove your point but do they actually  documents was protected that there was a reasonable expectation of privacy and i think if you look at cass you look at jacobson i throw in probably verses california which even though it was not a third party case it makes it so clear was being made right yes sure  know that we do know what you just said which is they said give us something formal right now or we to sit there we understand it but give us something formal penn state university who hears with a wink and a nod we're saying give us give us a document which is actually legally improper in this context it could be because whatever you want to know something for the files we don't know but we do know is where they not if would the law enforcement officials are accused of doing this it's coming forward with something they knew was not an appropriate legal it in terms of expectation of privacy the behavior cannot be tolerated and therefore no qualified is there of legal is there are a logical problem with that reason i would say  communications act and carefully just had a little trouble with this because it's not briefed by the parties extensively and yet i  why this ruling could not permit amendment was was not the subject of some more discussion or analysis how how are we to know versus nationwide our own case in which we in which we dealt with the story communication act actually it was the i'm not sure it was the specific part of the  electronic communication privacy act which is called the sort of communication that we've dealt with in the context of an employer employee relationship and nobody said and we certainly did say it doesn't apply because there's an employer employee relationship  i do not find a case it clearly is one way or the other in these particular circumstances what i did find was there are two ways of looking at this and we don't know which way is the correct way because we only have a complaint here usual way to retrieve emails and should go to the server and get the mail from the server if that is what happened here this was a law enforcement search that in fact penn state was not consenting this wasn't something penn state did willingly they did this at the instigation of and it was under a haitians in this complaint that states actions work anything with voluntary when you say there's no indication of that what is the indication of penn state saying we won't give it to you without some formal process there was a source for that owed and refusing reconsideration and leave to file a second man the complaint that you're entitled to work at the complaint that sought to be filed so i believe that is part of the and you know just in terms of consent penn state said no that is something for i will and the defendant is concoct this document which has all language about sanctions and you have to show up and you have to produce the this was attorney general demand for these documents assume that that's true assuming all that's true you still have to deal with the issue of whether there is a right you whether there is clearly established right contacts an employee is in a position to say you know my information is mine and nobody else can look at me kwan says on the one hand on the other hand there who legally which right ten case that was deciding the validity of an employer's search of an employee's text messages in two thousand and two or three i forget the exact date he takes one where situation here and even with kwan we're talking about that never really the california took the court came down to the supreme court came down very clear away in favor of the protection of the kind of information on a smartphone food mail store graphs documents contacts all of that was deemed to have a reasonable expectation of privacy that's an april two thousand and fourteen sure possibly eighteen months before not