The Ninth Circuit, of all places, just recently decided a case with significant implications for employer and employee privacy in the workplace. As with many of these cases, this one arises in the course of a prosecution for possession of child pornography.
The employer maintained a firewall system that allowed monitoring of internet network traffic flowing between its employees' computers and the internet. When the firewall detected an employee accessing child pornography sites, a representative of the company contacted the local FBI. The FBI asked for a back-up copy of the employee's hard drive as part of its investigation and the employer complied. Unsurprisingly, the employee claimed a 4th Amendment violation based on the company acting as agents of the FBI by entering his private office and searching his company computer. The government responded by noting that the employer had consented to the search. The district court denied the employee's motion to suppress, finding that he had no reasonable expectation of privacy in the files that he accessed on the internet.
The Ninth Circuit affirmed the denial of the motion to suppress in a detailed analysis of the overlap between an employee's right to privacy and an employer's right to oversee the use of its equipment and property.
The court first determined that the employee had a reasonable expectation of privacy in his office, which was a private office that was kept locked when the employee was not there. The court also found that there had been a search of the employee's office by government agents, namely the employer's IT staff acting at the behest of the FBI. Notwithstanding these findings, however, the court determined that there had not been a 4th Amendment violation because the government had obtained valid consent to search; specifically, the government had the consent of the employer to go into the employee's office, open his computer and remove and copy the computer hard drive.
The court found that even where an employee has a valid expectation of privacy in an office, an employer may still consent to a search of premises that it owns. Moreover, because the workplace computer was the type of workplace property remaining within the control of the employer, even with the employee's personal items in it, the employer could consent to have it searched by the government. The court noted that all of the company's computers were subject to administrative access by the company's IT department, that the company had a firewall monitoring internet traffic from within the organization, and employees were advised of the company's monitoring efforts both through training and the employee manual, as well as being advised that the company considered the computers company property and that they were not to use the computers for personal activities.
"In this context, Ziegler could not reasonably have expected that the computer was his personal property, free from any type of control by his employer." That's good news for almost all employers, and reinforces, again, the necessity to provide employees with some type of notice that the work computers they use daily are still not their own.