Whose Consent? Employee Privacy Expectations in the Workplace
From Venulex.com
A recent federal appellate Court indicated that, while under some certain factual circumstances an employee may have a Fourth Amendment expectation of privacy in the contents of a workplace computer, the employer could waive those privacy rights by implementing appropriate policies and notices to employees. The case, US v. Ziegler, 474 F.3d 1184 (9th Cir. 2007), has caused some waves to ripple through HR circles since being handed down and has had many wondering if it signaled a new direction in the area of employee privacy rights. Although the notion that an employee might have any objective expectation of privacy in his workplace computer is somewhat surprising and has been generally rejected in most circumstances, the result in Ziegler is generally consistent with the general trend toward limiting employee privacy rights.
The case involved an employee who downloaded child pornography on his work computer. When the employer caught wind of this activity, the company informed government law enforcement personnel. During the ensuing investigation, the employer entered the employee’s office at the government’s request to search and obtain a copy of the employee’s computer’s hard drive. When the employee was charged with possession of child pornography, the employee challenged the search and seizure on Fourth Amendment grounds. Ziegler argued that the employer acted as a de facto government agent and that its search violated his reasonable expectation of privacy in his workplace computer. The trial court refused to exclude the evidence gained by the search, and the employee was convicted.
In reviewing the trial court’s decision on the Fourth Amendment issues, the U.S. Court of Appeals for the Ninth Circuit concluded that, although the employee did have both a subjective and an objective expectation of privacy in his workplace computer, the employer nonetheless has the authority to consent to a search by government agents without the employee’s consent), where the employer workplace policy gave employees notice that the company monitored their Internet browsing. The existence of such a policy was sufficient to defeat the employee’s effort to suppress the evidence gained from the search on Fourth Amendment grounds, despite the employee’s otherwise legitimate expectation of privacy in his workplace computer.
What is surprising about this case is that the Court recognized at all that employees may have a right to privacy in their workplace computers. The Court’s holding that the employee here had a legitimate expectation of privacy, for Fourth Amendment purposes, is perhaps limited in its application outside the context of criminal procedure. Nonetheless, the case demonstrates once again that internal policies stating that employers own the equipment used in the workplace and that employee’s workplace computers are subject to search and monitoring lessen the chance that an employee can successfully argue, in any context, a legitimate expectation of privacy in the workplace. Businesses should be prudent and ensure policies are in place that limit employees’ expectation of privacy in the workplace and that employers can generally consent to searches by law enforcement personnel absent employee consent.
From Venulex.com
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<p>A recent federal appellate Court indicated that, while under some certain factual circumstances an employee may have a Fourth Amendment expectation of privacy in the contents of a workplace computer, the employer could waive those privacy rights by implementing appropriate policies and notices to employees.</p>
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