I continue to be misunderstood by well-meaning people of the “reasonable expectation of privacy” thing. Ace of Spades is the latest to join the fray, and he argues that my exception swallows the rule. It’s probably my fault for assuming that people in general would have familiarity with the somtimes intuitive (and sometimes counterintuitive) contours of Katz and its progeny. Let me explain.

It is not the case (and I am not arguing) that Katz stands for the proposition that there is no expectation of privacy at work. That isn’t true. A worker might well have a reasonable expectation of privacy in the contents of a locked drawer of his desk, or when he closes his door and places a telephone call in the reasonable expectation that only his wife on the other end is listening. However, an employee whose office is frequently visited by the public (such as maybe the customer service guys at the bank) doesn’t have an expectation of privacy in the giant Batman poster he has hung on the wall behind his desk.

Cases in the middle are harder to call. Employees at a customer service call center have no reasonable expectation of privacy in their phone calls if they are told that their bosses will be monitoring their calls, and this applies even if they are making a personal call to a family member. It’s situation dependent.

But it’s facially obvious that employees who have offices that are frequented by the public have no reasonable expectation of privacy in the words they speak while a potential customer is in their office potentially seeking business. The customer has been invited in, and the words being spoken are being “displayed to the public,” as it were. It is almost exactly analogous to the Batman poster example from earlier.

Thus, it is not the case that the determining factor is how well you know the person to whom you are speaking. Our hypothetical bank officer could close his door and call a total stranger – say, a doctor from whom he was receiving a second opinion – and the police could not wiretap that conversation without a warrant (for Fourth Amendment as well as Wiretap Act reasons). However, if the same bank officer invited an undercover officer posing as a potential customer into his office and proceeded to give bank advice, there is simply no reasonable expectation of privacy in that conversation.

In addition to costing me billable hours, Lexis isn’t free so I can’t go on the wild goose chase here that I would like. Nonetheless, dicta from a couple Supreme Court cases supports the claim that I am making that the ACORN case is not an especially close call. As noted in O’Connor v. Ortega, (480 U.S. 709) (a case discussing government offices),

Instead, in many cases offices are continually entered by fellow employees and other visitors during the workday for conferences, consultations, and other work-related visits. Simply put, it is the nature of government offices that others — such as fellow employees, supervisors, consensual visitors, and the general public — may have frequent access to an individual’s office. We agree with JUSTICE SCALIA that “[constitutional] protection against unreasonable searches by the government does not disappear merely because the government has the right to make reasonable intrusions in its capacity as employer,” post, at 731, but some government offices may be so open to fellow employees or the public that no expectation of privacy is reasonable.

And further in Mancusi v. Deforte (392 U.S. 364), while the Court held that the fact that the person’s shared office in question could not be searched by the government without a warrant, it was facially obvious that the office could be entered by his fellow employees and “their personal or business guests” and that the Defendant had no reasonable expectation that these individuals would not search through his records. In other words, it is ridiculous to claim that an office such as this one that is open to members of the public (prospective customers) has any reasonable expectation of privacy from those customers. I would also note that the fact that O’Keefe and Giles were less than forthcoming about their true purpose for visiting ACORN offices would not seem to change the analysis, according to cases like United States v. Jameson (1992 U.S. App. LEXIS 17565) (4th Cir. 1992).

Although it is an admittedly fact-driven inquiry, it is, to my way of thinking, not a particularly close call in this case. Further inquiry will have to be done by someone with infinite free access to LEXIS or Westlaw.