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JUDICIAL UPDATES Employees May Have Reasonable Expectation of Privacy in Office and Workplace Computer The Ninth Circuit Court of Appeals held, in the context of a criminal prosecution involving possession of child pornography, an employee did not have a reasonable expectation of privacy in his workplace computer. The defendant in that case requested a rehearing and a panel of Ninth Circuit judges reconsidered his arguments. In a decision issued on January 30, 2007, the Ninth Circuit withdrew its earlier opinion and issued a new ruling. The employer was Frontline Processing. The owner of Frontline’s internet service provider contacted the FBI with a tip that a Frontline employee had accessed child pornography web sites from a workplace computer. The FBI involved Frontline’s employees, including its internet technology administrator, who monitored employee use of workplace computers, including their internet access. The administrator confirmed that a Frontline employee had accessed child pornography via the internet and eventually traced that access to the computer in the office of Ziegler, the company’s director of operations. It was undisputed that the company’s employees were aware at all times that the IT department had the ability to monitor all workplace computers. Purportedly at the direction of the FBI agent who was handling the matter, the IT administrator and his subordinate received permission from the company’s CFO to enter Ziegler’s office, open his computer and copy his hard drive. Ziegler was charged with violating several federal laws involving receipt and possession of child pornography. He filed a motion to suppress the evidence that the FBI obtained from the search of his workplace computer, contending that the search, which was not done pursuant to a warrant, violated the Fourth Amendment. The government argued that the search was voluntary by the company. A criminal defendant may challenge a search as violative of the Fourth Amendment if he can show that he had a legitimate expectation of privacy in the place searched or the item seized. Such an expectation is proven when the defendant shows a subjective expectation of privacy and an objectively reasonable expectation of privacy. There was no dispute that Ziegler had a subjective expectation of privacy: he used a password on his computer and had a lock on his private office door. The court also found that Ziegler had an objectively reasonable expectation of privacy in his office. The office was not shared by co-workers and was kept locked. He could reasonably expect that he would not be disturbed in his office except by business or personal invitees and that records and other information would not be taken except with the permission of his supervisors. The existence of a master key, though a factor, did not automatically or necessarily defeat a reasonable expectation of privacy in an office that was provided for personal use. The court went on to hold that, on the facts of the case, the search was lawful because it was done with the consent of Frontline, which exercised common authority over the office and workplace computer such that it could properly consent to a search. (United States v. Ziegler, Ninth Circuit Court of Appeals Case No. 05-30177, January 30, 2007.) This decision is not as favorable to employees as the earlier one. It demonstrates that an employee may be able to argue that he or she has a reasonable expectation of privacy in her office or computer depending upon the particular facts of the situation. A company’s written policy, acknowledged by employees, that it monitors computer activity and states that employees have no expectation of privacy in their computer use (as well as use of their voice mail and e-mail) will not automatically lead to a victory for the employer in the event of a dispute. Though having such a policy is helpful and is something we still recommend, this Ziegler case shows that employees are not without rights in the workplace. It is important to keep in mind, however, that this case involved the actions of the government. (The IT administrator and his subordinate, acting at the direction of an FBI agent, were considered to be “government actors” for purposes of the Fourth Amendment argument.) This case does not mean that an employer may not monitor employee’s use of workplace computers. Indeed, when an employer acts on its own and not as actual or “de facto” agents of the government, the Fourth Amendment is not implicated.
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