Tuesday, August 8, 2006

No Workplace Privacy Rights in Computer Used to Store Child Porn


Here's an interesting case at the intersection of criminal law and workplace privacy.

In United States v. Ziegler, No. 05-30177 (9th Cir., Aug. 8, 2006), the Ninth Circuit consider "whether an employee has an expectation of privacy in his workplace computer sufficient to suppress images of child pornography sought to be admitted into evidence in a criminal prosecution."  Apparently, the company had owned and routinely monitored all workplace computers and employees were aware of the monitoring.  It was through this monitoring that the owner of the company reported Ziegler to the FBI for downloading child porn on his workplace computer.

The dispute surrounds whether IT people at the company were permitted to go into Ziegler's office without his knowledge and without his permission in order to make copies of the information on his hard drive.  There was some dispute as to whether this was done voluntarily by company employees or at the behest of the FBI, but the 9th Circuit proceeded on the assumption that this was conduct directed by the government.

In finding that no such privacy right in Ziegler's workplace computer existed regardless, the Court commented:

[A] criminal defendant may invoke the protections of the Fourth Amendment only if he can show that he had a legitimate expectation of privacy in the place searched
or the item seized.

Other courts have scrutinized searches of workplace computers in both the public and private context, and they have consistently held that an employer’s policy of routine
monitoring is among the factors that may preclude an objectively reasonable expectation of privacy.

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.

The lesson is that as long as an employer has an internet/computer policy which puts employees on notice that the computer belongs to the company and that activity on the computer will be routinely monitored, employees are not going to have a legitimate expectations of privacy for 4th Amendment purposes.

BTW, kudos to Matt Finkin (Illinois) for having his law review article mentioned by the court ("Surely, some lament the general lack of privacy in the modern workplace. See, e.g., Matthew W. Finkin, Employee Privacy, American Values, and the Law, 72 CHI.-KENT L. REV. 221, 226 (1996)."), even if the Court did not ultimately agree with his sentiments.

Update:  Orin Kerr at the Volokh Conspiracy points out a crucial Fourth Amendment point that the 9th Circuit seems to have missed. Interestingly, the distinction is an employment one, relating to the workplace privacy rights of government employees versus private employees when it comes to government searches.  Orin's point:

Okay, so by now you're wondering, what difference does it make? If you analyze this case under the private-sector framework, you still will reach the same result because the employer had "common authority" to search the computer, right? Off the top of my head, yes, I think that's right. But the framework announced in Ziegler will still make an enormous difference in lots of other cases.

Further Update: Dan Solove, a privacy law expert at Concurring Opinions, has his thoughts on the Ziegler case here.



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Posted by: Patricia Blanton | Aug 17, 2006 8:33:46 PM

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