UNITED STATES, Appellant and Cross-Appellee 

v. 

Jennifer N. LONG, Lance Corporal 

U.S. Marine Corps, Appellee and Cross-Appellant 

No. 05-5002 

Crim. App. No. 200201660 

United States Court of Appeals for the Armed Forces 

Argued February 21, 2006 

Decided September 27, 2006 

GIERKE, C.J., delivered the opinion of the Court, in which 

EFFRON, BAKER, and ERDMANN, JJ., joined. CRAWFORD, J., filed a 

dissenting opinion. 

Counsel 

For Appellee and Cross-Appellant: Charles Gittins, Esq. 

(argued); Lieutenant Commander Jason S. Grover, JAGC, USN (on 

brief); Lieutenant Brian L. Mizer, JAGC, USN. 

For Appellant and Cross-Appellee: Major Kevin C. Harris, USMC 

(argued); Commander Charles N. Purnell II, JAGC, USN (on brief); 

Colonel Ralph F. Miller, USMC. 

Amicus Curiae for Appellee and Cross-Appellant: Stephanie Knott

(law student) (argued); H. Brian Holland, Esq. (supervising 

attorney) and Patrick E. Tolan, Esq. (supervising attorney) (on 

brief) - for Barry University, Dwayne O. Andreas School of Law. 

Military Judge: E. W. Loughran 

This opinion is subject to revision before final publication. 
United States v. Long, No. 05-5002/MC 

2

Chief Judge GIERKE delivered the opinion of the Court.1

This case presents us with questions certified by the Judge 

Advocate General of the Navy regarding the reasonable 

expectation of privacy a military person has in e-mail messages 

sent and stored on a government computer system.2 Lance Corporal 

Long, in a cross-petition, questions the holding by the lower 

court that the search and seizure violation it found was 

harmless beyond a reasonable doubt.3

 We conclude that based on 

 

1

 Oral argument in this case was heard on February 21, 2006, at 

Barry University, Dwayne O. Andreas School of Law, in Orlando, 

Florida, as a part of this Court’s “Project Outreach.” See

United States v. Mahoney, 58 M.J. 346, 347 n.1 (C.A.A.F. 2003). 

This practice was developed as part of a public awareness 

program to demonstrate the operation of a federal court of 

appeals and the military justice system. 

2

 The Judge Advocate General of the Navy certified the following 

issues: 

I. WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS 

ERRED WHEN [IT] DETERMINED THAT, BASED ON THE EVIDENCE 

ADDUCED AT TRIAL, APPELLEE HELD A SUBJECTIVE EXPECTATION 

OF PRIVACY IN HER E-MAIL ACCOUNT AS TO ALL OTHERS BUT 

THE NETWORK ADMINISTRATOR. 

II. WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS 

ERRED WHEN [IT] DETERMINED THAT IT IS REASONABLE, UNDER 

THE CIRCUMSTANCES PRESENTED IN THIS CASE, FOR AN 

AUTHORIZED USER OF THE GOVERNMENT COMPUTER NETWORK TO 

HAVE A LIMITED EXPECTATION OF PRIVACY IN THEIR E-MAIL 

COMMUNICATIONS SENT AND RECEIVED VIA THE COMPUTER 

NETWORK SERVER. 

3

 We granted the following issue submitted by Appellee and CrossAppellant: 

WHETHER THE LOWER COURT ERRED IN FINDING THAT THE MILITARY 

JUDGE’S ERROR IN ADMITTING E-MAILS SENT AND RECEIVED BY 

LANCE CORPORAL LONG ON HER GOVERNMENT COMPUTER WAS HARMLESS 

BEYOND A REASONABLE DOUBT. 
United States v. Long, No. 05-5002/MC 

3

the particular facts of this case, Appellee4 did have a 

subjective expectation of privacy in these e-mails, that her 

expectation of privacy was objectively reasonable, and that the 

error in admitting these e-mails was not harmless beyond a 

reasonable doubt. 

FACTS 

Appellee was charged with several specifications of 

unlawful drug use in violation of Article 112a, Uniform Code of 

Military Justice (UCMJ).5

 The Government’s case was based, in 

part, on several e-mails that were sent and received by Appellee 

and that were retrieved from a government server. These e-mails 

contained statements written by Appellee indicating, among other 

things, a fear that her drug use would be detected by urinalysis 

testing and the steps she had taken in an attempt to avoid such 

detection. 

At trial, the defense made a motion to suppress the e-mails 

because they were the result of a search which was not properly 

authorized. The military judge denied the motion holding that 

Appellee had no expectation of privacy in the e-mails stored on 

 

4

 Lance Corporal Long is the Appellee on the certified issues and 

the Appellant on her cross-petition. For clarity we will refer 

to her as Appellee throughout this opinion. We will refer to 

her opponent as the Government. 

5

 10 U.S.C. § 912a (2000). 
United States v. Long, No. 05-5002/MC 

4

the government server. Contrary to her pleas, Appellee was 

convicted by members of the charged offenses.6 

On appeal, Appellee challenged the ruling of the military 

judge on the motion to suppress her e-mails. The United States 

Navy-Marine Corps Court of Criminal Appeals disagreed with the 

military judge, holding that the search was unlawful, but 

further concluding that the error in admitting the e-mails was 

harmless beyond a reasonable doubt.7

EVIDENCE ON THE MOTION TO SUPPRESS 

Mr. Flor Asesor, the Senior Network Administrator for the 

government computer network, was the sole witness to testify on 

the motion. He testified that Captain Fitzharris, an 

investigator for the Marine Corps Inspector General, was looking 

for evidence of misconduct.8

 Captain Fitzharris told Mr. Asesor 

to retrieve the e-mails from Appellee’s e-mail account. Mr. 

Asesor retrieved her e-mails which had been stored on the 

government server and provided them to Captain Fitzharris. 

 

6

 Appellee was sentenced to confinement for two months, reduction 

to the lowest enlisted pay grade and a bad-conduct discharge. 

The convening authority approved the sentence as adjudged. 

7

 United States v. Long, 61 M.J. 539, 546, 549 (N-M. Ct. Crim. 

App. 2005). 

8

 Although there is no evidence in the trial transcript 

explaining the nature of Captain Fitzharris’s investigation, 

there are averments in the prosecution trial brief on the motion 

to suppress indicating that the investigation involved 

allegations of an improper relationship between Appellee and an 

officer. Although the details are not clear, the military 

judge’s finding of fact that Captain Fitzharris was searching 

for evidence of misconduct is fully supported by the testimony 

of Mr. Asesor. 
United States v. Long, No. 05-5002/MC 

5

The Court of Criminal Appeals found that the e-mails were 

retrieved as the result of a specific request by law enforcement 

officials9

 and concluded that “[t]here is also no doubt under the 

facts of this case that the actions of the network administrator 

in looking for, retrieving, and turning over the subject e-mails 

to law enforcement officials amounted to a search.”10 These 

findings and conclusions are consistent with the finding by the 

military judge that this was a “search for evidence” and the 

Government’s concessions in their brief and oral argument before 

this Court. Mr. Asesor authenticated Appellate Exhibit XIII, a 

log-on banner which appeared anytime a user logged onto his or 

her office computer. This banner contained the following 

information: 

This is a Department of Defense computer system. 

This computer system, including all related equipment, 

networks and network devices (specifically including 

Internet access), are provided only for authorized U.S. 

Government use. DoD computer systems may be monitored for 

all lawful purposes, including to ensure that their use is 

authorized, for management of the system, to facilitate 

protection against unauthorized access, and to verify 

security procedures, survivability and operational 

security. Monitoring includes active attacks by authorized 

DoD entities to test or verify the security of this system. 

During monitoring, information may be examined, recorded, 

copied and used for authorized purposes. All information, 

including personal information, placed on or sent over this 

system may be monitored. Use of this DoD computer system, 

authorized or unauthorized, constitutes consent to 

monitoring of this system. Unauthorized use may subject 

you to criminal prosecution. Evidence of unauthorized use 

collected during monitoring may be used for administrative, 

 

9

 Id. at 541. 

10 Id. at 543. 
United States v. Long, No. 05-5002/MC 

6

criminal, or other adverse action. Use of this system 

constitutes consent to monitoring for these purposes. 

Mr. Asesor also explained that each individual user of the 

computer system had his or her own unique password known only to 

them. Users were required to change their password every ninety 

days. As the network administrator, Mr. Asesor did not have 

access to user passwords, and the only way he could access 

individual accounts was to lock the individual user out of the 

account. As the network administrator, Mr. Asesor was able to 

access the entire network or any part of it, including personal 

e-mails sent by individual users such as Appellee. 

He testified that in conducting the monitoring described in 

the banner, it was general policy to avoid examining e-mails and 

their content because it was a “privacy issue.” Mr. Asesor 

indicated that the examination and seizure of the e-mails in 

this case were not related to the monitoring program and were 

not the result of concerns about a security violation or 

unauthorized use. Instead, he conceded that they were retrieved 

as a part of a search for evidence of misconduct. 

Based on these facts, the military judge denied the motion 

to suppress. He concluded that this was a search for evidence; 

there was not actual consent by the accused to this search; and 

there was no search authorization issued by a commander. The 

linchpin of the military judge’s ruling was that Appellee had no 

reasonable expectation of privacy in the e-mail account. In 
United States v. Long, No. 05-5002/MC 

7

explaining his conclusion, the military judge stated, “I find 

that anyone who saw that banner on an ongoing basis would not 

believe that they had a reasonable expectation of privacy in any 

e-mails that were sent.” 

THE COURT OF CRIMINAL APPEALS DECISION 

The Navy-Marine Corps Court of Criminal Appeals examined 

the case and concluded that the military judge should have 

suppressed the e-mails.11 The court held that Appellee had a 

reasonable expectation of privacy in the e-mails sent and 

received on her government computer.12 The court further 

indicated that the banner relied upon by the military judge to 

find no privacy expectation may have limited Appellee’s 

expectation of privacy with regard to non-law enforcement 

monitoring of the computer system, but that the seizure of the 

e-mails in this case was for law enforcement purposes.13 The 

court then tested the error for prejudice and ultimately 

concluded that the error was harmless beyond a reasonable 

doubt.14

DISCUSSION 

The Fourth Amendment of the Constitution protects 

individuals, including servicemembers, against unreasonable 

 

11 Long, 61 M.J. at 546. 

12 Id.

13 Id. 14 Id. at 546-49. 
United States v. Long, No. 05-5002/MC 

8

searches and seizures.15 We have described a search as an 

official governmental intrusion into an individual’s reasonable 

expectation of privacy.16 Whether such an expectation of privacy 

exists is therefore a question in any search and seizure 

analysis. The question is resolved by examining whether the 

individual challenging the alleged intrusion had a subjective 

expectation of privacy which was objectively reasonable.17 If 

such an expectation is established, the inquiry then moves to 

the remaining issues raised by the Fourth Amendment. 

Official intrusions into protected areas in the military 

require search authorization supported by probable cause, unless 

they are otherwise lawful under the Military Rules of Evidence 

(M.R.E.) or the Constitution of the United States as applied to 

members of the armed forces.18

The determination of the reasonableness of an expectation 

of privacy, “is understood to differ according to context.”19 

The present case involves a military member’s claimed 

expectation of privacy in e-mails sent and received on a 

government computer. The Supreme Court has recognized that in 

the context of the government workplace, employees may have a 

 

15 United States v. Daniels, 60 M.J. 69, 70 (C.A.A.F. 2004). 

16 Id. at 71. 

17 Minnesota v. Olson, 495 U.S. 91, 95-96 (1990); United States 

v. Monroe, 52 M.J. 326, 330 (C.A.A.F. 2000). 

18 See M.R.E. 314(k). 

19 O’Connor v. Ortega, 480 U.S. 709, 715 (1987) (plurality 

opinion). 
United States v. Long, No. 05-5002/MC 

9

reasonable expectation of privacy against certain intrusions.20 

However, “[p]ublic employees’ expectations of privacy in their 

offices, desks, and file cabinets . . . may be reduced by virtue 

of actual office practices and procedures, or by legitimate 

regulation.”21 The rationale for this suggestion is the 

“efficient and proper operation of the agency.”22 Thus, an 

“employee’s expectation of privacy must be assessed in the 

context of the employment relation.”23 

If the practices of the workplace establish an environment 

where the employee enjoys no reasonable expectation of privacy, 

the underlying search and seizure issue is easy to resolve. In 

such a situation the protections of the Fourth Amendment would 

simply not apply. If an expectation of privacy is supported by 

the workplace environment, however, the analysis must continue. 

The Supreme Court instructs us that, in the government 

workplace, a reasonable expectation of privacy may not provide 

the employee with complete Fourth Amendment protection. The 

Supreme Court, in O’Connor, concluded that the need for a search 

warrant based on probable cause was not required for legitimate 

workplace searches conducted by supervisors.24 Instead, 

“[P]ublic employer intrusions on the constitutionally protected 

 

20 Id. at 716. 

21 Id. at 717. 

22 Id. at 723. 

23 Id. at 717. 

24 Id. at 725. 
United States v. Long, No. 05-5002/MC 

10

privacy interests of government employees for noninvestigatory, 

work-related purposes, as well as for investigations of workrelated misconduct, should be judged by the standard of 

reasonableness under all the circumstances.”25 This conclusion 

was based on the Supreme Court’s recognition that “[W]hile 

police, and even administrative enforcement personnel, conduct 

searches for the primary purpose of obtaining evidence for use 

in criminal or other enforcement proceedings, employers most 

frequently need to enter the offices and desks of their 

employees for legitimate work-related reasons wholly unrelated 

to illegal conduct.”26 

O’Connor, therefore, presents two situations where employer 

searches into zones of privacy are legitimate even if not 

supported by normal Fourth Amendment warrant and probable cause 

requirements. The first exception is where the search is for 

noninvestigatory, work-related purposes. The second is if the 

search by the employer is investigatory but involves matters of 

workplace misconduct. In either of these situations the search 

is evaluated using the standard of reasonableness based on all 

the surrounding facts and circumstances.27 When the 

reasonableness standard is applicable, the government must 

establish: (a) that the search “was justified at its 

 

25 Id. at 725-26. 

26 Id. at 721. 

27 Id. at 725-26. 
United States v. Long, No. 05-5002/MC 

11

inception”; and (b) that the conduct of the investigation was 

“reasonably related in scope to the circumstances which 

justified the interference in the first place.”28

We must note that the military workplace is not the usual 

workplace envisioned by the Supreme Court in O’Connor. The 

military workplace can range from an office building to a bunker 

or tent in a combat zone. Similarly, military leaders and their 

subordinates are different than civilian public officials and 

their employees. Military commanders have authority and powers 

not possessed by civilian employers. Military commanders, for 

example, can authorize searches of their personnel,29 order them 

confined,30 and bring criminal charges against them.31 Military 

personnel operate in a system that provides criminal sanctions 

for workplace misconduct.32 Accordingly, we need to keep these 

unique aspects of the military environment in mind whenever we 

apply the O’Connor decision to workplace searches. 

As this is a case certified to this Court by the Judge 

Advocate General of the Navy, we will focus our analysis on the 

questions certified. We therefore turn to the ultimate question 

presented: did Appellee have a reasonable expectation of 

 

28 Id. at 726 (citations and quotation marks omitted). 

29 M.R.E. 315(d)(1). 

30 Article 9, UCMJ, 10 U.S.C. § 809 (2000). 

31 Articles 22, 23, and 24, UCMJ, 10 U.S.C. §§ 822, 823, 824 

(2000). 

32 See, e.g., Article 86, UCMJ, 10 U.S.C. § 886 (2000), which 

provides criminal sanctions for what would be addressed through 

administrative measures in the civilian workplace. 
United States v. Long, No. 05-5002/MC 

12

privacy in the e-mail communications sent and received via the 

Headquarters, Marine Corps (HQMC) computer network server? 

As noted, in examining Fourth Amendment privacy interests, 

the courts look first to whether the individual had a subjective 

expectation of privacy.33 If the courts ascertain that a 

subjective expectation of privacy exists, they then determine if 

that expectation is one that society is prepared to accept as 

reasonable.34 

The first question is one of fact, which is reviewed using 

a clearly erroneous standard.35 The second is one of law, which 

we review de novo.36 In this case the military judge did not 

differentiate between the subjective and objective expectations 

of privacy. Instead, he simply concluded that there was no 

expectation of privacy. For purposes of our discussion, we will 

assume that the military judge found that any subjective 

expectation of privacy held by Appellee was not objectively 

reasonable and will review that determination de novo. 

THE SUBJECTIVE EXPECTATION OF PRIVACY 

This Court previously considered military members’ 

subjective expectations of privacy in Maxwell37 and Monroe.38 In 

Maxwell, the accused used America Online’s (AOL) e-mail service 

 

33 Olson, 495 U.S. at 95-96; Monroe, 52 M.J. at 330. 

34 Ortega, 480 U.S. at 715. 

35 United States v. Maxwell, 45 M.J. 406, 417 (C.A.A.F. 1996). 

36 United States v. Reister, 44 M.J. 409, 413 (C.A.A.F. 1996). 

37 45 M.J. at 417-19. 

38 52 M.J. at 330. 
United States v. Long, No. 05-5002/MC 

13

to communicate with another junior Air Force officer about the 

accused’s sexual interests and to send and receive obscene 

material and child pornography.39 This Court concluded that 

Maxwell possessed a subjective expectation of privacy where it 

was AOL’s policy to offer “contractual privacy protection,” 

including nondisclosure of e-mail without a court order.40

In Monroe, this Court concluded that, in contrast to 

Maxwell, the e-mail system in question was owned by the 

government.41 We noted that Monroe’s subjective expectation of 

privacy was not governed by contractual agreement, as in 

Maxwell, and we concluded that, based on the totality of the 

circumstances, Monroe had no expectation of privacy, at least 

from persons maintaining the electronic mail host system.42

In making the case that she had an expectation of privacy, 

Appellee argues that access to her computer and therefore her 

e-mail account was protected by a password known only to her. 

Indeed, the network administrator testified that he did not know 

her password. 

In response to the argument that Appellee’s password 

created an expectation of privacy, the Government points out 

that the passwords are required as a part of the government 

computer security concerns in order to limit unauthorized access 

 

39 45 M.J. at 414. 

40 Id. at 417. 

41 42 M.J. at 330. 

42 Id.
United States v. Long, No. 05-5002/MC 

14

to the government system. Accordingly, the Government concludes 

that passwords protect governmental interests, not individual 

privacy concerns. 

The Government relies most heavily on the log-on banner to 

support its notion that Appellee could not have believed her email communications were private. The Government argues that 

courts have looked at similar warnings and policies, and found 

them sufficient to establish that the employee had no 

expectation of privacy.43 Conversely, Appellee argues that the 

language of the banner is not sufficient to remove her 

expectation of privacy from unreasonable, warrantless searches 

conducted for law enforcement purposes. 

In light of the particular facts of this case, we conclude 

that the lower court was not clearly erroneous in its 

determination that Appellee had a subjective expectation of 

privacy in the e-mails she sent from her office computer and in 

the e-mails that were stored on the government server. 

We conclude that the testimony of the network administrator 

is the most compelling evidence supporting the notion that 

Appellee had a subjective expectation of privacy. Mr. Asesor 

repeatedly emphasized the agency practice of recognizing the 

privacy interests of users in their e-mail. The fact that 

 

43 See United States v. Simons, 206 F.3d 392, 398 (4th Cir. 

2000); United States v. Angevine, 281 F.3d 1130, 1135 (10th Cir. 

2002). 
United States v. Long, No. 05-5002/MC 

15

Appellee had a password known only to her, supports Mr. Asesor’s 

testimony regarding the attitude toward privacy and the lower 

court’s conclusion that Appellee had a subjective expectation 

that access to her e-mails was protected and severely limited. 

Her subjective expectation was not diminished by the fact that 

the password may also have served certain governmental 

interests. The language of the log-on banner also confirms the 

privacy interests testified to by Mr. Asesor. The banner 

described access to “monitor” the computer system, not to engage 

in law enforcement intrusions by examining the contents of 

particular e-mails in a manner unrelated to maintenance of the 

e-mail system. In summary, we find that the password and the 

language of the banner, in light of Mr. Asesor’s testimony, 

support the lower court’s conclusion that Appellee met her 

burden of demonstrating a subjective expectation of privacy. 

THE REASONABLENESS OF THE PRIVACY EXPECTATION 

In O’Connor, the Supreme Court recognized that there may be 

an expectation of privacy in a government workplace but that 

there is no talisman for determining the reasonableness of such 

an expectation in cases involving public employees.44 Instead, 

the reasonableness of a privacy expectation will differ 

according to the context, and the “operational realities of the 

 

44 480 U.S. at 715. 
United States v. Long, No. 05-5002/MC 

16

workplace.”45 M.R.E. 314 discusses searches not requiring 

probable cause, and subsection (d) of M.R.E. 314 deals 

specifically with searches of government property. M.R.E. 

314(d), which is consistent with the holding in O’Connor, 

indicates that searches of government property may be made 

without probable cause unless an individual has a reasonable 

expectation of privacy in that property and that the 

determination of the reasonableness of an expectation of privacy 

“depends on the facts and circumstances at the time of the 

search.” 

The e-mails seized in this case were originally prepared in 

an office in HQMC on a computer owned by the Marine Corps and 

issued to Appellee. They were transmitted over the HQMC network 

system, stored on the HQMC server, and retrieved by the HQMC 

network administrator. Each of those factors might arguably fit 

a situation where society would be unwilling to recognize an 

individual expectation of privacy.46 Other evidence in this 

case, however, convinces us that Appellee’s subjective 

expectation of privacy in these e-mails is one that society is 

prepared to accept as reasonable. 

We consider the testimony of Mr. Asesor, the network 

administrator, describing the agency practices and policies to 

be most persuasive. We look to office practices because the 

 

45 Id. at 717. 

46 See Bond v. United States, 529 U.S. 334, 338 (2000). 
United States v. Long, No. 05-5002/MC 

17

Supreme Court in O’Connor indicated that privacy expectations in 

the workplace may be reduced by virtue of office practices, 

procedures, or regulation.47 In this case, the policies and 

practices of HQMC reaffirm rather than reduce the expectations 

regarding privacy on office computers. These policies, among 

other things, require individual users to have passwords known 

only to themselves and to change their passwords periodically to 

ensure privacy. Additionally, these policies limit outside 

network access to the network administrator and describe very 

limited conditions under which he would monitor the network for 

unauthorized use. 

The testimony of the Government’s witness about policies 

and practices is strong evidence that Appellee’s subjective 

expectation of privacy was objectively reasonable. Mr. Asesor 

explained that HQMC’s policy regarding using the network to send 

personal e-mails had always been lenient and that such use of 

the network was considered authorized. Mr. Asesor further 

testified that when doing the testing and monitoring of the 

network, he did not monitor individual accounts because “it’s a 

privacy issue.” 

This Court in Monroe held that a military member did not 

have a reasonable expectation of privacy with respect to the 

 

47 480 U.S. at 717. 
United States v. Long, No. 05-5002/MC 

18

content of e-mail messages.48 In Monroe, we held that the 

appellant, despite any subjective expectation of privacy, had no 

objectively reasonable expectation of privacy because the 

incriminating e-mails were discovered as part of the routine 

monitoring described in the log-on banner message in use.49 

The totality of the circumstances in this case leads us to 

conclude that, unlike in Monroe, Appellee’s expectation of 

privacy was objectively reasonable. The HQMC log-on banner 

explained that the network administrator had access to 

Appellee’s computer as a “monitoring” function. The e-mails 

retrieved in this case were from Appellee’s account on an 

unclassified government computer system on which she was 

authorized limited personal use and were not obtained for 

maintenance or monitoring purposes. Mr. Asesor testified that 

prior to accessing Appellee’s e-mail account, he had no 

information based on his previous monitoring that she was using 

her account in an unauthorized manner. As noted, Mr. Asesor 

further testified that he retrieved Appellee’s e-mails to look 

for evidence of misconduct. If Mr. Asesor had been doing the 

monitoring described in the log-on banner when he came across 

Appellee’s incriminating e-mails, this case would fall within 

the parameters of O’Connor and Monroe, thus presenting a 

different analytic framework and potentially a different result. 

 

48 52 M.J. 330. 

49 Id.
United States v. Long, No. 05-5002/MC 

19

Instead, Mr. Asesor confirmed that the sole purpose of seizing 

the e-mails was to search for evidence of misconduct. 

Accordingly, this case is not like Monroe where the 

incriminating e-mail evidence was found inadvertently by 

personnel performing routine systems maintenance described in 

the log-on banner. To the contrary, the evidence seized in this 

case was done so as a part of a search for law enforcement 

purposes.50

The result we reach in this case is not inconsistent with 

other federal court decisions that have considered similar 

situations and found no privacy expectation. In Simons,51 the 

court was dealing with a very different, very specific policy 

regarding use of the computer system. In Simons the Internet 

policy both restricted use, including e-mail use, to official 

government business and indicated to employees that ongoing use 

of the system was subject to audit and inspection.52 In the 

present case, however, Appellee was authorized to use the 

government computer for personal use and the banner described a 

less intrusive monitoring program directed to unauthorized use. 

In Angevine, the log-on banner expressly informed the employee 

that e-mail messages “contain no right of privacy or 

 

50 See Long, 61 M.J. at 541.

51 206 F.3d at 396. 

52 Id.
United States v. Long, No. 05-5002/MC 

20

confidentiality.”53 The banner in the instant case did not 

provide Appellee with notice that she had no right of privacy. 

Instead, the banner focused on the idea that her use of the 

system may be monitored for limited purposes. 

Based on our review of precedent and the totality of the 

circumstances in this case, we conclude that while the log-on 

banner may have qualified Appellee’s expectation of privacy in 

her e-mail, it did not extinguish it. Simply put, in light of 

all the facts and circumstance in this case, the “monitoring” 

function detailed in the log-on banner did not indicate to 

Appellee that she had no reasonable expectation of privacy in 

her e-mail. 

Based on this evidence, we conclude that Appellee’s 

expectation of privacy was, in fact, recognized as reasonable by 

virtue of the rules, regulations, practices, and procedures of 

HQMC. Accordingly, her subjective expectation of privacy was 

one which society is prepared to recognize as reasonable. 

THE EXPECTATION OF PRIVACY –- CONCLUSION 

The fact that the seizure of Appellee’s e-mails in this 

case was solely for law enforcement purposes is not in dispute. 

While government employers may need to enter an employee’s 

office space or intrude into an employee’s computer or e-mail 

account for work-related reasons, searches conducted for the 

 

53 281 F.3d at 1133 (emphasis added). 
United States v. Long, No. 05-5002/MC 

21

primary purpose of obtaining evidence of illegal conduct require 

probable cause.54 As this search went beyond work-related 

monitoring or an investigatory search of work-related 

misconduct, it was not one exempt from the probable cause 

requirement. Thus, to be admissible, the evidence obtained in 

the search must have been pursuant to authorization.55 Because 

there was no command authorization, the evidence should have 

been suppressed.56 

HARMLESS ERROR 

After concluding that the search was unreasonable and that 

Appellee’s e-mails should have been suppressed, the Court of 

Criminal Appeals determined that the error was harmless beyond a 

reasonable doubt.57 Appellee, in her cross-appeal, takes issue 

with this conclusion. 

 

54 O’Connor, 480 U.S. at 724. 

55 See M.R.E. 314; M.R.E. 315. 

56 Even if this had been an intrusion for noninvestigatory, workrelated purposes or an investigation of work-related misconduct 

which, under O’Connor, would have been measured by a 

reasonableness standard, the Government would still fail. 

O’Connor requires the government to demonstrate reasonableness 

by showing that: (a) the search “was justified at its 

inception”; and (b) the conduct of the investigation was 

“reasonably related in scope to the circumstances which 

justified the interference in the first place.” 480 U.S. at 726 

(citations and quotation marks omitted). In the case at bar, 

the Government presented no evidence on either question and 

relied solely on the argument that Appellee had no reasonable 

expectation of privacy. 

57 Long, 61 M.J. at 546-49 (citing United States v. Simmons, 59 

M.J. 485, 489 (C.A.A.F. 2004); Neder v. United States, 527 U.S. 

1, 15 (1999)). 
United States v. Long, No. 05-5002/MC 

22

After reviewing all the evidence, we agree with Appellee. 

The lower court concluded that the witnesses for the Government 

were “credible, uniform, and detailed in their testimony 

regarding the appellant’s unlawful drug use,”58 which was in 

sharp contrast to the defense witnesses whom the lower court 

found to be less than credible because they all had “significant 

motive to fabricate.”59 

Although the lower court’s skepticism regarding the 

credibility of the defense witnesses may be well founded, there 

are substantial reasons why one might be equally skeptical of 

the credibility of the Government witnesses. The prosecution 

witnesses were all admitted drug users who had incentives to 

testify for the Government in this case. Additionally, they 

were all potential accomplices and the court members were 

instructed by the military judge that their testimony should 

therefore be viewed with great caution. 

Perhaps most important to our determination of the harmless 

error issue is trial counsel’s reliance on the e-mails in his 

presentations to the court members. Trial counsel ended his 

opening statement referring to the importance of those e-mails 

because they were Appellee’s own account of her worries and 

fears about upcoming urinalysis testing. 

 

58 Id. at 548. 

59 Id.
United States v. Long, No. 05-5002/MC 

23

Similarly, the subject of Appellee’s e-mails was emphasized 

in trial counsel’s closing argument. In discussing the members’ 

task of evaluating the evidence, trial counsel explained that 

the evaluation is made much easier by the e-mails, which contain 

Appellee’s own words. He then proceeded to read from several of 

the e-mails and concluded by saying: “Gentlemen, I submit to 

you, if there was anything even resembling reasonable doubt, 

those e-mails should pretty much clear that up.” 

Whether error is harmless beyond a reasonable doubt is a 

question of law reviewed de novo.60 The burden is on the 

Government to show whether “it appears beyond a reasonable doubt 

that the error complained of did not contribute to the verdict 

obtained.”61

In Simmons, we concluded that the error in admitting 

certain evidence was not harmless beyond a reasonable doubt when 

trial counsel in that case “referred to the illegally seized 

letter in the beginning, middle, and end of his closing 

argument.”62 We are faced with almost identical facts in this 

case, where constitutionally inadmissible evidence was a 

 

60 Chapman v. California, 386 U.S. 18, 24 (1967); Arizona v. 

Fulminate, 499 U.S. 279 (1991). 

61 Mitchell v. Esparza, 540 U.S. 12, 16 (2003) (per curiam) 

(quoting Neder, 527 U.S. at 15 (quotation marks omitted); see 

also United States v. Hall, 58 M.J. 90, 94 (C.A.A.F. 2003); 

Simmons, 59 M.J. at 489. 

62 Simmons, 59 M.J. at 491. 
United States v. Long, No. 05-5002/MC 

24

cornerstone of trial counsel’s opening statement and his closing 

argument. 

Trial counsel obviously felt that the e-mails were very 

important to his case. We agree. Accordingly, we cannot 

conclude that the erroneous admission of the e-mails was 

harmless beyond a reasonable doubt. 

CONCLUSION 

The certified questions are answered in the negative: the 

United States Navy-Marine Corps Court of Criminal Appeals did 

not err when it found that Appellee had a subjective expectation 

of privacy in her e-mail communications. Further, we hold that 

the lower court did not err when it concluded that Appellee’s 

privacy expectation was reasonable. Because we are not 

convinced that the error in admitting the e-mail communications 

was harmless beyond a reasonable doubt, we decide the granted 

issue in favor of Appellee. Accordingly, the findings and 

sentence are set aside. The record of trial is returned to the 

Judge Advocate General of the Navy. A rehearing is authorized. 
United States v. Long, No. 05-5002/MC 

 CRAWFORD, Judge (dissenting): 

 I respectfully dissent from the majority’s holding that 

despite the Department of Defense (DoD) log-on banner and 

Appellee’s consent to monitoring, she had both the subjective 

and objective expectation of privacy in e-mails seeking advice 

from her friends regarding concealing her drug use. This case 

impacts on the DoD policy as set forth in the banner. “DoD 

computer systems may be monitored for all lawful purposes 

. . . . Use of this DoD computer system, authorized or 

unauthorized, constitutes consent to monitoring of this system.” 

This banner, which appears on nearly all DoD systems, 

constitutes consent to monitoring. See Scott A. Sundstrom, 

You’ve Got Mail! (And the Government Knows It): Applying the 

Fourth Amendment to Workplace E-mail Monitoring, 73 N.Y.U. L. 

Rev. 2064, 2090 (1998) (citing Scot L. Gulick, Memorandum from 

Office of General Counsel to All Computer Users, The Standards 

of Ethical Conduct (United States Department of Defense), Sept. 

1997, at 1). Our analysis should determine whether there is 

coverage and protection under the Fourth Amendment.∗ See, e.g., 

 

∗

 Since 1960, this Court has held that the Bill of Rights applies 

to servicemembers “except those [rights] which are expressly or 

by necessary implication inapplicable.” United States v. 

Jacoby, 11 C.M.A. 428, 430-31, 29 C.M.R. 244, 246-47 (1960); cf.

Davis v. United States, 512 U.S. 452, 457 n.* (1994) (Supreme 

Court has “never had occasion to consider whether Fifth 

Amendment privilege . . . applies of its own force to the 

military . . . .”); United States v. Taylor, 41 M.J. 168, 171 
United States v. Long, No. 05-5002/MC 

2

Taylor, 41 M.J. at 170. The question hinges on whether Appellee 

had a subjective and objectively reasonable expectation of 

privacy. Katz v. United States, 389 U.S. 347, 361 (1967) 

(Harlan, J., concurring). If there is, what protection does 

Appellee deserve? 

 In United States v. Monroe, 52 M.J. 326, 330 (C.A.A.F. 

2000), we held that a defendant does not have an expectation of 

privacy in his e-mail, “at least from the personnel charged with 

maintaining the EMH [electronic mail host] system.” We left 

open the issue presented in this particular case. Here the 

Government banner removes any subjective or objective 

expectation of privacy by requiring all employees to consent to 

monitoring before they may use their computers. See Wyman v. 

James, 400 U.S. 309, 318-24 (1971)(notice to welfare benefits 

recipient was factor in determining no violation of the Fourth 

Amendment). 

 The majority mistakenly believes that an objective 

reasonable expectation of privacy can be preserved for some 

forms of seizure despite being nonexistent for others. The 

majority cites no legal authority to support this position. 

Once Appellee was given notice of and consented to monitoring of 

 

(C.M.A. 1994) (application of Bill of Rights “is not only of 

academic importance, but also it is important to the President 

in deciding what rules should be applied to the military”). 
United States v. Long, No. 05-5002/MC 

3

any kind, she could not maintain a reasonable expectation of 

privacy against other forms of intrusion. As the Supreme Court 

writes, “‛Once frustration of the original expectation of 

privacy occurs, the Fourth Amendment does not prohibit 

governmental use of the . . . information . . . .’” Georgia v. 

Randolph, 126 S. Ct. 1515, 1534 (2006) (quoting United States v. 

Jacobsen, 466 U.S. 109, 117 (1984)). Knowledge of actual 

monitoring negates any reasonable expectation of privacy. See

United States v. Hatcher, 323 F.3d 666, 674 (8th Cir. 2003) 

(holding prisoners and their attorneys had no reasonable 

expectation of privacy since they knew their conversations were 

being recorded); United States v. Madoch, 149 F.3d 596, 602 (7th 

Cir. 1998) (no spousal privilege when communicating to an 

inmate, knowing that inmate communications are monitored). 

Appellant in the present case was aware of and consented to the 

monitoring and archiving of electronic communications 

originating from her government computer. She therefore could 

not have a reasonable expectation of privacy in those 

communications. That the communications were obtained 

specifically for law enforcement purposes has no bearing on her 

expectation of privacy. 

 The majority cuts too fine a line in trying to distinguish 

applicable federal precedent based on the wording of the banner. 

The majority states that United States v. Angevine, 281 F.3d 
United States v. Long, No. 05-5002/MC 

4

1130, 1133 (10th Cir. 2002), is not applicable because in that 

case, the banner included the explicit term, “contain no right 

of privacy or confidentiality.” While a rewording of subsequent 

DoD Internet usage banners may be advisable, the language of the 

banner at issue here leaves no doubt as to its invasiveness: 

“All information, including personal information, placed on or 

sent over this system may be monitored.” The majority seems to 

think that the average servicemember would not understand the 

plain meaning of that sentence without the magical phrase “no 

expectation of privacy.” This conclusion is disconcerting. The 

majority ignores a number of other cases with less specific 

banner language where the courts found no reasonable expectation 

of privacy. See Kaufman v. SunGard Inv. System, 

No. 05-CV-126(JLL), 2006 U.S. Dist. LEXIS 28149, at *12, 2006 WL 

1307882, at *4 (D.N.J. May 9, 2006)(letter-opinion and order); 

Muick v. Glenayre Elec., 280 F.3d 741, 743 (7th Cir. 2002); 

United States v. Simons, 206 F.3d 392, 398 (4th Cir. 2000). The 

purpose of the banner was to give notice that computer activity 

would be monitored, and as imprecise as it may be, the language 

of the banner unambiguously conveyed that message. 

 The majority also attempts to distinguish Simons based on 

the “very specific policy regarding use of the computer system” 

in that case. This is a distinction that should not be made. 

As stated above, a reasonable expectation of privacy is not 
United States v. Long, No. 05-5002/MC 

5

divisible. The majority refuses to directly acknowledge 

applicable federal precedent on this issue. In doing so, they 

ignore a clear trend in the federal courts that there is no 

expectation of privacy in situations, like this one, where there 

is a DoD banner clearly announcing a departmental monitoring 

policy. When an employee knows that an employer is monitoring 

his or her e-mail, there cannot be a reasonable expectation of 

privacy, especially when the employee is notified each time that 

logging on constitutes consent to monitoring. 

 The court noted in Simons, 206 F.3d at 398, that “office 

practices, procedures, or regulations may reduce legitimate 

privacy expectations.” Likewise, in Angevine, 281 F.3d at 1134, 

the court held that a university professor had no expectation of 

privacy to files erased on his computer because the university’s 

“policy explicitly cautions computer users that information 

flowing through the University network is not confidential 

either in transit or storage on a University computer.” Thus, 

university users were aware that administrators and others had 

free access to the downloaded Internet material. The court held 

that deleting the files “was not sufficient to establish a 

reasonable expectation of privacy.” Id. at 1135. “[G]iven the 

absence of the city policy placing [defendant] Slanina on notice 

that his computer use would be monitored and the lack of any 

indication that other employees had routine access to his 
United States v. Long, No. 05-5002/MC 

6

computer, we hold that Slanina’s expectation of privacy was 

reasonable.” United States v. Slanina, 283 F.3d 670, 677 (5th 

Cir. 2002), vacated on other grounds by 537 U.S. 802 (2002). 

 In United States v. Bailey, 272 F. Supp. 2d 822, 835-36 (D. 

Neb. 2003), the court held that a defendant had no reasonable 

expectation in his computer at his civilian work site which had 

a log-on banner. The log-on banner stated: 

 These computer resources are solely owned by the 

Company. Unauthorized access or use is a violation of 

federal law and could result in criminal prosecution. 

Users agree not to disclose any company information 

except as authorized by the company. Your use of this 

computer system is consent to be monitored and 

authorization to search your personal computer to 

assure compliance with company policies. 

Id. at 831. The company’s policy available to the workers 

said: 

 It is critical that all agents, employees, 

suppliers and vendors understand these information 

security policies and comply with them when accessing 

and using American Family’s electronic resources. All 

of us -- as individuals and as a Company -- will be 

held accountable for knowing and adhering to these 

policies. Each of us as individuals and as a Company 

can be held liable for failing to comply with these 

policies. 

Id. at 832. 

Additionally, the company policy posted on the Intranet 

site explained that while personal use of computers was not 

prohibited, it could not be used for unlawful purposes, and the 

workers had “no expectation of privacy associated with the 
United States v. Long, No. 05-5002/MC 

7

information they store in or send through these systems.” Id.

at 832, 836. As to the expectation of privacy, the court 

stated: 

Absent a legitimate and constitutionally protected 

expectation of privacy in e-mail files, defendant 

cannot successfully assert a Fourth Amendment 

violation. United States v. Bach, 310 F.3d 1063, 1066 

(8th Cir. 2002). Factors relevant to determining if a 

legitimate expectation of privacy exists include 

ownership, possession and/or control of the area 

searched or item seized; the defendant’s historical 

use of the property or item; whether the defendant can 

exclude others from that place; whether he took 

precautions to maintain the privacy; and whether the 

defendant had a key to the premises. 

Id. at 834-35. 

 The fact that an individual has a password does not change 

the expectation of privacy. Garrity v. John Hancock Mut. Life 

Ins. Co., No. 00-12143-RWZ, 2002 U.S. Dist. LEXIS 8343, at *5-

*6, 2002 WL 974676, at *2 (D. Mass. May 7, 2002); see also

Bailey, 272 F. Supp. 2d at 835-37 (the facts, including 

“employer’s notice [that] . . . internet use[] and e-mail may be 

monitored,” undermine[] an employee’s claim that the information 

was private and “any expectation of privacy that the employee 

has is not one that society is willing to accept and protect”). 

In Smyth v. Pillsbury Co., 914 F. Supp. 97, 101 (E.D. Pa. 1996), 

the court indicated that an employee has no reasonable 

expectation of privacy in e-mail because “the company’s interest 

in preventing inappropriate and unprofessional comments or even 
United States v. Long, No. 05-5002/MC 

8

illegal activity over its e-mail system outweighs any privacy 

interest the employee may have in those comments.” 

The majority improperly uses Appellee’s authorization for 

personal use of her e-mail account to support their finding of a 

reasonable expectation of privacy. However, her personal 

account was her work account and Appellee’s communications fall 

within the scope of work-related communications. Appellee 

discussed her diminished ability to perform her job as well as 

her appearance at work in e-mails sent to Ms. KS between 9:46 

a.m. and 1:07 p.m. on August 15, 2000, the day of her urinalysis 

test. The times the e-mails were sent indicate that they were 

sent while she was at work. The systems administrator testified 

that the e-mail accounts were “authorized specifically for doing 

your job within DOD” and that personal use is something they 

have been “lenient on allowing.” The distinction between a 

work-related e-mail and e-mail unrelated to work would be 

difficult, if not impossible, to make in many instances. 

The perception of one administrator in a department as 

large as the DoD, with over 2.5 million servicemembers, 

excluding civilians, is not binding on the department itself. 

The belief of an administrator is even more attenuated 

considering how computers are used on the job. Cf. United 

States v. Muniz, 23 M.J. 201, 206 (C.M.A. 1987) (“[W]e note that 

the credenza, like any other item of Government property within 
United States v. Long, No. 05-5002/MC 

9

the command, was subject at a moment’s notice to a thorough 

inspection. That omnipresent fact of military life, coupled 

with indisputable government ownership and the ordinarily 

nonpersonal nature of military offices, could have left 

appellant with only the most minimal expectation -- or hope -- 

of privacy.” (citation omitted)). 

 As the United States Court of Appeals for the Ninth Circuit 

stated in United States v. Ziegler, 456 F.3d 1138, 1146 (9th 

Cir. 2006), “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.” Every time Appellee turned on her 

computer, she was aware of the computer-use policy of her 

service and could not have a reasonable expectation of privacy. 

 While the Supreme Court has not heard an e-mail case, the 

Supreme Court’s expectation of privacy approach applies. 

Certainly, the possibility of exposure to the public eye 

diminishes or alleviates one’s expectation of privacy, and 

undoubtedly when one is so warned of monitoring, there is no 

expectation of privacy. Just as the Supreme Court indicated, 

there is no reasonable expectation of privacy in numbers dialed 

on a telephone because “[w]hen he used his phone, petitioner 

voluntarily conveyed numerical information to the telephone 

company and ‘exposed’ that information to its equipment in the 
United States v. Long, No. 05-5002/MC 

10

ordinary course of business.” Smith v. Maryland, 442 U.S. 735, 

744 (1979), superseded by statute, Electronic Communications 

Privacy Act of 1986, 18 U.S.C. § 3121(a) (2000). Similarly, as 

to business records, the Supreme Court indicated that financial 

statements and deposit slips are “voluntarily conveyed to the 

banks and exposed to their employees.” United States v. Miller, 

425 U.S. 435, 442 (1976), superseded by statute, Right to 

Financial Privacy Act of 1978, 12 U.S.C. § 3401 (2000), as 

recognized in SEC v. Jerry T. O’Brien Inc., 467 U.S. 735, 745 

(1984). Based on the hierarchy as to sources of rights, a 

statute can grant more rights than the Fourth Amendment. See

United States v. Lopez, 35 M.J. 35, 39 (C.M.A. 1992). Thus, 

there is no expectation of privacy. Miller, 425 U.S. at 443-44. 

 One “takes the risk, in revealing his affairs to another, 

that the information will be conveyed by that person to the 

Government,” id. at 443, thus providing a basis for the 

conclusion that the subscriber lacks an expectation of privacy 

in communications held by a service provider, especially when 

there is a log-on notice and no statutory protection. 

 Even when there is a reasonable expectation of privacy, one 

of the exceptions is consent to search. Consent is such that 

one would not rely upon an assumption of risk that the service 

provider would not reveal this information to law enforcement 

officials. Hoffa v. United States, 385 U.S. 293, 302-03 (1966). 
United States v. Long, No. 05-5002/MC 

11

Likewise, in Lopez v. United States, 373 U.S. 427, 465 (1963), 

the Supreme Court acknowledged that a conversation 

surreptitiously recorded by a government agent was admissible 

even though there was no prior judicial authorization for the 

recording. See also Osborn v. United States, 385 U.S. 323, 327-

31 (1966) (holding that a tape-recorded conversation based on 

surreptitious surveillance was properly admitted). Certainly, a 

communicator’s expectation of privacy is not reasonable once he 

or she has given consent to search. Expectation of privacy is 

also lessened when the user recognizes that his or her 

communications are recorded. Where consent is given to an 

administrator or someone with mutual use of the property, see

United States v. Matlock, 415 U.S. 164, 171 (1974), the 

originators of e-mail assume the risk that the administrator may 

give consent to law enforcement officials. This is not an 

instance where the police went to the Internet provider as in 

United States v. Maxwell, 45 M.J. 406, 412 (C.A.A.F. 1996). The 

possession of the password means that this information is 

protected against other individuals logging onto Appellee’s 

computer or to another computer and trying to obtain her 

e-mails. The password is not a protection against the systems 

administrator or law enforcement. For the aforementioned 

reasons, I respectfully dissent.