Our August 17, 2006 post discussed the decision of the Ninth Circuit Court of Appeals in United States v. Ziegler. The case concerns the criminal prosecution of a private company's employee for child pornography using an office computer owned by the employer. On January 30, 2007 the original panel withdrew its earlier opinion and filed a superseding opinion. The result stayed the same, but the court explained its reasoning differently. Here's the link to the new opinion.
The issue as framed by the court:
We must determine 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. If there is such an expectation, we must determine whether the search in this case was reasonable under the narrow exceptions to the Fourth Amendment warrant requirement.
The basic facts were rather simple. When the employer became concerned that Ziegler was using company computers to access child pornography, it notified the FBI. The FBI agent who investigated enlisted the employer to search Ziegler's computer, but did not obtain a search warrant. Ziegler had a private office which was kept locked.
The court found that a "search" had occurred. It focused on whether the search was reasonable in the circumstances. The court found that even though Ziegler had a subjective expectation of privacy in his physical office, the employer could consent to a search of premises that it owned. The court found another reason:
"We are also convinced that Frontline could give valid consent to a search of the contents of the hard drive of Ziegler's workplace computer because the computer is the type of workplace property that remains within the control of the employer even if the employee has placed personal items in [it]."
The court summarized its holding this way:
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. The contents of his hard drive . . . were work-related items that contained business information and which were provided to, or created by, the employee in the context of the business relationship. Ziegler's downloading of personal items to the computer did not destroy the employer's common authority. Thus, Frontline, as the employer, could consent to a search of the office and the computer that it provided to Ziegler for his work.
Accordingly, the court affirmed the trial court's denial of Ziegler's motion to suppress the results of the search.
While most employers hopefully will not have to contend with this kind of problem, the best protection is to have a well thought out policy on employee internet use. On that issue, we close with our usual caution. In New Jersey, policies and employee manuals are not a do-it-yourself activity. Mistakes are easy to make and the legal risks are simply too great. If you need a handbook, or have one that needs to be updated, get help from an experienced employment attorney.