>> To continue with our discussion
>> of the Fourth Amendment,
>> it's important to understand
what the expectation of privacy is.
With the expectation of privacy,
it's essentially a two-step process.
The first step of that process is to have
standing to claim protection
>> under the Fourth Amendment,
>> a person must first
demonstrate that they have an expectation of
privacy and that that expectation is
not merely a subjective expectation,
but an expectation that society is prepared to
recognize as reasonable under the circumstances.
First, you have to demonstrate that you expect to have
privacy and then you have to
demonstrate that that is obviously reasonable.
That's that two-step process.
If I'm outside in plain view of everyone,
there's trees and birds and cars,
people walking by,
my expectation of privacy is obviously very low.
However, on the opposite end of that spectrum,
if I'm in my own house,
if I've got my door locked,
if I've got my window shades down,
and I've taken those reasonable steps to ensure
that I'm pretty much not
>> being able to be seen or heard,
>> I do have that expectation of
privacy as most people will recognize that
I've taken those steps and that
I've demonstrated that I should
have that expectation of
privacy because I've taken certain measures.
Now, that being said,
the government can limit
the reasonable expectation of
privacy and the Supreme Court
has looked at a few different cases as far
as the government limiting that expectation.
One of those cases is O'Connor v Ortega.
Now, in this case,
it mainly applies to government employees,
where it says that government employees might
actually not have an expectation
to privacy in their workplaces.
By virtue of working for the government,
they tacitly or explicitly give up
certain rights as part of
your employment agreement with the government.
Now, that being said,
it's not a blanket waiver
for the government to go in and search through
every one's personal possessions
or go through their desk.
There have been some exceptions
to O'Connor v Ortega as well,
whereas there was a police officer
who had a locker in the locker room of
the bathroom of a police station and he
also had his own personal lock on the locker.
Having that personal lock did necessarily violate
departmental policy as there was
no policy on having your own personal lock,
as well as there was
a government-owned lock on the locker.
But having that private lock on
that locker actually demonstrated that
the person did have that expectation of privacy
and people thought that was
a pretty reasonable expectation,
so he'd met that two-step process.
Basically, you just want to be cognizant that there can
be limitations to your expectation of privacy,
but also with those limitations, there are caveats.
Again, it's very important to consult legal counsel.
That being said, if
no reasonable expectation of privacy exist,
obviously no warrant is going to be required.
Again, if I'm outside in open spaces,
plain view, there would be
no warrant required to conduct that search.
But when in doubt,
it's very important that you
seek legal advice because you
don't want to end up violating someone's rights.
When we go into
the exception of the search warrant requirement,
one of the first things that we're going to
come across is consent.
Consent can be obtained in a
>> variety of methods and ways.
>> One of the first methods of
>> consent is a user agreement.
>> If I'm going to use a certain space,
if I'm going to use a computer,
if I'm going to be somewhere,
I either implicitly agree to
be there because I see a sign and I show up and
I'm still there or I sign
a physical agreement stating that I do
agree to have someone search
>> me or I'm subject to search.
>> Also, we have acceptable use policies.
So if I'm going to be using something such as a device,
I just generally sign some documents
saying how I'm going to use the device and
then I might be subject to
search at my employer's direction.
We also have security policies,
>> conditions of employment.
>> Obviously we've talked about government employees.
If I have a security clearance
or I'm working in some type of
facility and I'm coming in and out of that facility,
part of my condition of
>> employment is that I agree to be
>> searched either coming in or
>> out that facility at random.
>> Then another type of expectation or
exception to the expectation
of privacy is going to be banners.
A lot of organizations,
especially the federal government,
will have a banner that pops up
on your computer screen that says
that the activities that
are conducted on that computer are subject to search.
Those are just a few exceptions
to the search warrant requirement
that fall under the consent category.
Some other considerations that you may want to consider
are issues to deal with
your computer infrastructure and your computer network.
A lot of organizations have gone to what they
call Bring Your Own Device or BYOD.
BYOD is great, it's pretty convenient.
It allows individuals to be
>> connected at work or at home,
>> allows them to use a single device
that they've paid for and
>> that they're comfortable with,
>> it might actually increase productivity.
I could work from home I could work in the office,
I have access to the same data and the same systems,
then it might actually make me more productive.
However, with that being said,
bringing your own device is inherently insecure.
If you don't have some type of managed system
to ensure that individual updating
of the system is necessary,
that they have antivirus
installed on their computer systems,
that they're not accessing websites,
that they shouldn't be or that they are not uploading
your data to places that you don't want it uploaded,
bringing your own device or allowing employees to do
that is actually quite dangerous.
Then the question arises
that in the event that you do suffer
a data breach or that there's
some incident involving that device,
do you have the legal authority to
inspect or confiscate a personally-owned device?
That's going to go back to your policies
and procedures and
what type of agreements that you've set in
place with your employees.
But as a whole,
as a private entity that is not owned or
controlled or operated by the government, generally,
you'll be safe most of the time to start investigating
and collecting evidence because in most cases,
a corporation or a private entity is going to
own all the infrastructure that they have,
and because they own that infrastructure,
they essentially can't provide
that consent to search their own stuff.
In the majority of cases where you're
going to be investigating these incidents,
the Fourth Amendment search warrant and
seizure requirements more than
likely will not come into play.
But again, it's a very important consideration
when you start bringing in
that law enforcement organization and working with
them to collect that data
>> because at some point in time,
>> you may actually become agents of the government,
so again it's important to seek legal counsel advice.
Then if you work
for the government or you are a government agent,
then the Fourth Amendment
applies to you 100 percent of the time,
so you obviously have
to follow those search warrant requirements.