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More on Computer Porn in the Office

Posted by Frank Steinberg | Aug 17, 2006 | 0 Comments

We have written before about the Doe v. XYC Corp. case and the legal chaos that can result from employees using office computers to access child porn on the internet. Another case has come down from the Ninth Circuit Court of Appeals — yes, the one that conservative pundits love to ridicule — that emphasizes the risk of criminal liability to employees and the importance of the employer handling its investigation in the right way. The case is United States v. Ziegler, decided on August 8, 2006. The issue was whether the employee had a reasonable expectation of privacy in the contents of his office computer. Here the issue was not civil liability of the employer but criminal liability of the employee.

Here are the facts in a nutshell. The owner of a company found that one of his employees had accessed child porn. The owner tipped off the FBI, which began an investigation. Through the company's computer monitoring techniques, it was able to identify the specific office from which the material was viewed and identified its occupant to the FBI. The company also provided the FBI with a copy of the suspect employee's hard drive on which investigators found several images of pornography.

The employee was indicted . He struck a deal to plead to a relatively minor count, subject to his motion to suppress the evidence discovered on his computer. If he won the motion he would walk away from the plea. The employee argued, in essence, that the FBI had directed the employer to make the backup copy of the hard drive, that the employer thus acted as an agent of the government, and therefore argued that the search and seizure violated the 4th Amendment.

Cutting through the technical stuff, the case turned on the question whether the employee had an objectively reasonable expectation of privacy in the office computer. Following the trend in these cases, it found that he did not have a reasonable expectation of privacy. The evidence was not suppressed. Thus, the plea stood and the employee was convicted of the crime.

There are two lessons here. First, even the supposedly ultra-liberal 9th Circuit holds that office computers belong to the business, not the employee. Any employee who treats an office computer as his personal property is taking a risk.

Second, the employer in question had the capability to monitor the use of its computers, had policies that governed the monitoring, and made sure that its employees knew about both. When the company discovered that possibly illegal activity was taking place with its computers, its president treated the matter seriously, notified the authorities, and cooperated with the investigation. By acting responsibly, the employer avoided any potential legal entanglement of its own.

Handling these matters in the right way is crucial to New Jersey employers in particular. If you don't think so, go back to the top and review our post on the Doe v. XYC Corp. case, where the employer was held liable, not for failing to investigate, but for failing to investigate well enough.

Yes, it all happened on the left coast, but New Jersey employers and employees can take a lesson from this one.

About the Author

Frank Steinberg

Frank is the founder and principal of Steinberg Law, LLC. A Jersey boy born and bred, he focuses on employment litigation and counseling, business litigation,  and aviation law. Following law school and a clerkship in the federal district court Frank spent his early career with large litigation ...

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