Last year, the U.S. Ninth Circuit Court of Appeals, which covers California, ruled that employees cannot expect privacy when using workplace computers if their employer has an electronic monitoring policy in place. But now, the Ninth Circuit has revisited that ruling—this time finding that the employee indeed had an expectation of privacy for the computer and for his office but that the employer still retained authority to consent to an FBI search. We’ll explain the court’s latest position.
Child Pornography Accusations
Frontline Processing, located in Montana, services Internet merchants by processing online electronic payments. The company’s IT department regularly monitored all its workplace computers, and employees were aware of IT’s monitoring capabilities.
Problems arose when Frontline’s Internet service provider notified the FBI that a Frontline employee had accessed child porn websites from a Frontline computer. The FBI immediately launched an investigation, during which Frontline’s IT administrator John Softich confirmed to the FBI that computer records showed that child pornography websites were accessed from a computer in the office of Frontline’s director of operations, Jeffrey Ziegler.
Softich and IT employee Wiliam Schneider, believing they were acting on the FBI’s instructions, obtained a key to Ziegler’s private office, entered, opened the computer casing, and made two copies of its hard drive. Frontline’s counsel then told the FBI that a search warrant wasn’t necessary and voluntarily gave the FBI the hard drive copies.
Computer Evidence Challenged
Ziegler was indicted on child pornography charges and pleaded not guilty. He then argued that evidence obtained from his computer should be suppressed because an FBI-ordered search of his workplace computer, without a search warrant, violated his Fourth Amendment right to be free from unreasonable searches and seizures. The government argued that the Fourth Amendment didn’t apply.
A search warrant wasn’t needed because Frontline’s search was voluntary and didn’t involve law enforcement. What’s more, Zeigler had no privacy expectation when he used the computer because of the company’s monitoring practices.
No Privacy Expectation, But Porn Charges Stand
The Ninth Circuit has now ruled that Ziegler had an expectation of privacy, but that the search of the office and computer complied with the Fourth Amendment.
The appeals court explained that private employees do have some expectation of privacy in their offices and office contents. In this case, Ziegler’s expectation of privacy was reasonable because his office was not shared by co-workers and was kept locked. The fact that there is a master key to an office, noted the court, doesn’t necessarily defeat an employee’s reasonable expectation of privacy in an office assigned for personal use.
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The court then turned to the Fourth Amendment issue. Even though this amendment applies only to government searches, the court found that the Frontline employees acted as de facto FBI agents in searching Ziegler’s office and computer. However, the search was not unreasonable—and therefore didn’t violate the Fourth Amendment—because Frontline gave, and had the authority to give, consent for the search.
Frontline’s authority to consent to the search stemmed from several factors. First, a workplace computer is workplace property that remains in the employer’s control, even if the employee has placed personal items in it. Second, Frontline’s IT group retained complete administrative access to employee computers, had a firewall installed to monitor Internet traffic, and routinely monitored the firewall log. The company apprised employees of the monitoring through training and an employment manual, and told them that the computers were company-owned and not to be used for personal activities. Thus, said the court, Ziegler could not have reasonably expected that the computer was his personal property, and therefore free from any type of control by Frontline.
Policies Critical
The Ninth Circuit’s current position that an employee may have an expectation of privacy in a workplace computer makes it more critical than ever for employers to have a policy reserving the right to monitor computer use and to clearly communicate the policy to the workforce. Without such a policy, you could have limited ability to monitor employee computer use or to take action on information received from the monitoring.
For More Information
For more information on drafting a computer use policy, see our California Employer Advisor article Sample Computer Use Policy.
United States v. Ziegler, U.S.C.A. 9th Cir. No. 05-30177, 2007.