United States District Court, D. Oregon
J. Williams, United States Attorney, and Michelle Holman
Kerin, Assistant United States Attorney, Attorneys for
Shertz, and Ryan O'Connor, Attorneys for Defendant.
OPINION AND ORDER
J. Immergut, United States District Judge
was indicted on four counts of wire fraud, in violation of 18
U.S.C. § 1343, and one count of making a false statement
in a document, in violation of 18 U.S.C. § 1001(a)(3).
ECF 1. On September 10, 2019, Defendant filed a motion to
suppress emails and evidence derived from a warrantless
search of Defendant's workplace email account. ECF 37.
The Government's response to the motion provided
additional facts about the email account and the context in
which the Government received copies of Defendant's
emails. ECF 48. The response included an image of the banner
message displayed when Defendant logged on to his work
computer system. Id. at 4. The response also
attached two policies which governed Defendant's computer
use at work. ECF 48-1, 48-2.
October 15, 2019, this Court held a hearing on the motion to
suppress. At the hearing, Defendant's counsel stated that
for the purpose of this motion, Defendant stipulates to the
facts as presented in Government's response and its
attachments. Defendant's counsel also declined the
opportunity to present any additional evidence at an
evidentiary hearing on the motion. At the end of the hearing,
this Court orally denied the motion and indicated that this
opinion and order would follow.
at least September 2011, Defendant worked for the Oregon
National Guard in a position subject to computer policies and
restrictions established by the U.S. Department of Defense.
ECF 48 at 2. The Defense Department conveyed these policies
in a banner message displayed each time Defendant logged on
to his computer as well through an annual training, the
“Cyber Awareness Challenge, ” in which Defendant
participated. Id. at 2-3, 5. The Department also
owned and operated the server that stored and processed
Defendant's work emails. Id. at 2.
indictment concerns the period 2012 through 2014. ECF 1 at 4,
8. During this time, Defendant had to comply with two
overlapping computer-use policies as a condition of his
employment. ECF 48 at 3. First, he was subject to Army
Regulation 25-2 (“AR 25-2”), which was originally
issued in October 2007 and revised in March 2009.
Id. at 5-6. AR 25-2 specified that using Defense
Department computer systems constitutes consent to monitoring
and “that there is no expectation of privacy while
using [information systems] or accessing Army
resources.” ECF 48-2. AR 25-2 also required that a
warning banner detailing this information be displayed each
time a user accessed the computer system. Id. The
regulation required not only that the warning appear, but
also that the user “take a positive action to accept
the terms of the notice and consent warning banner before a
successful logon is completed.” Id. During the
period at issue in this case, the warning banner advised:
You are accessing a U.S. Government (USG) Information System
(IS) that is provided for USG-authorized use only. By using
this IS (which includes any device attached to this IS), you
consent to the following conditions:
- The USG routinely intercepts and monitors communications on
this IS for purposes including, but not limited to,
penetration testing, COMSEC monitoring, network operations
and defense, personnel misconduct (PM), law enforcement (LE),
and counterintelligence (CI) investigations.
- At any time, the USG may inspect and seize data stored on
- Communications using, or data stored on, this IS are not
private, are subject to routine monitoring, interception, and
search, and may be disclosed or used for any USG-authorized
- This IS includes security measures (e.g., authentication
and access controls) to protect USG interests--not for your
personal benefit or privacy.
- Notwithstanding the above, using this IS does not
constitute consent to PM, LE or CI investigative searching or
monitoring of the content of privileged communications, or
work product, related to personal representation or services
by attorneys, psychotherapists, or clergy, and their
assistants. Such communications ...