e-Lessons Learned

Are employees who have their own offices different from employees in cubicles?

The Ninth Circuit wavered back and forth on this decision and eventually came to a compromise: an employee has a reasonable expectation of privacy in his own office, but if the employee knows that his computer was subject to monitoring by his employer and to disclosure to law enforcement, he lacks any Fourth Amendment expectation of privacy in his internet activity.

The events leading up to the offending employee’s arrest are very short of dramatic. The Fourth Amendment issue, however, that courts grappled with in this case has important ramifications. The case began when the owner of Frontline’s Internet-service provider tipped off the FBI that a Frontline employee had accessed child-pornographic websites from a workplace computer. A FBI agent contacted Frontline’s Internet Technology (“IT”) Administrator. The Administrator informed the FBI agent that the company had in place a firewall, which permitted constant monitoring of the employees’ Internet activities. In fact, IT was already aware that their employee, Jeffrey Ziegler (Director of Operations), had viewed sites that depicted “very, very young girls in various states of undress.” The IT department had placed a device in Ziegler’s computer that would record his Internet activity. According to Frontline’s IT department, Frontline owned and routinely monitored all workplace computers, and the employees were aware of the IT department’s monitoring capabilities. The FBI agent instructed Frontline’s IT department to enter Ziegler’s office (which was locked) and make a copy of the hard drive. The FBI received a copy, essentially resulting in a warrantless search by the government into Ziegler’s computer. Subsequently, FBI forensic examiners discovered many images of child pornography.

At the trial court level Ziegler moved to suppress evidence obtained from his office computer, arguing that it had been searched in violation of his Fourth Amendment rights. The court denied the motion to suppress, and Ziegler sought review. On appeal, the Ninth Circuit affirmed. In its 2006 decision, the Court held that there was no Fourth Amendment violation because defendant did not have an objectively reasonable expectation of privacy in the workplace computer and its files because the computer was the type of workplace property that remained within the control of the employer even if the employee had placed personal items in it.

On January 30, 2007, the Ninth Circuit reversed its earlier August 2006 decision upon a petition for rehearing. In contrast to the earlier decision, the Court acknowledged that an employee has a right to privacy in his workplace computer. The court also found that an employer could consent to searches and seizures that would otherwise be illegal. The Court acknowledged that although Ziegler had a reasonable expectation of privacy regarding his office, his employer had the right to give its consent to the government’s warrantless search of the office Ziegler used and the company’s computer that was located there. Therefore, although it was undisputed that the defendant had a subjective expectation of privacy in the contents of the hard drive — the computer was password protected and kept in a locked office — the Court opined that the more important inquiry was whether he had an objectively reasonable expectation of privacy. For a number of reasons, the Ninth Circuit held that such an expectation had been defeated. Most significantly, the employer’s IT department had a policy of routinely monitoring the traffic crossing the company’s firewall, and had full administrative access to all computers in the facility. In addition, employees of Frontline were all aware that the IT department monitored their computer usage. Finally, the Court held that the Government had consented to the search from the owner of the computer, which would be Frontline.

By allowing the government to perform searches on employee computers because of consent from the employer, the courts have left employees with little recourse and zero Fourth Amendment protections against warrantless searches of their work computers.

Lesson: Lock your door or don’t, it will not matter when the Feds Come A’ Knockin’.

Tanya Basu is a Pharmacist and a third year student at Seton Hall Law School, focusing on Health and Intellectual Property Law.

Article posted on March 23, 2009 at 8:35 AM |              More... 
Tagged as: Computer Forensics Protocols, Consent, Discoverability, Privacy.
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