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The 9th U.S. Circuit Court of Appeals recently provided a reminder that, for purposes of the Fourth Amendment, an employee of a private company that has an announced policy of monitoring employees’ use of computers, including their accessing the Internet, has no reasonable expectation of privacy in the contents of his or her company-supplied computer. U.S. v. Ziegler, No. 05-30177 (9th Cir. Aug. 8, 2006). In the absence of a reasonable expectation of privacy, no Fourth Amendment claim can succeed. Smith v. Maryland, 442 U.S. 735, 745-46 (1979). The decision applies to employees in the private sector a body of law developed principally as to governmental employees. Employers can controlprivacy expectations In O’Connor v. Ortega, 480 U.S. 709 (1987), a majority of the U.S. Supreme Court (in two opinions) held that no warrant is required when a governmental employer searches an employee’s office for a legitimate work-related reason, including investigation of work-related misconduct. When such a search occurs in a space where an employee has a reasonable expectation of privacy, the search must satisfy the general Fourth Amendment requirement of reasonableness. To do that, the search must be reasonable in its inception (i.e., either the search is necessary for some noninvestigatory purpose, e.g., to retrieve a file needed for business, or there are reasonable grounds for suspecting that the search will yield evidence of work-related misconduct), and it must be reasonable in its scope (i.e., the actual conduct of the search reasonably relates to the legitimating purpose(s) of the search and is not unduly intrusive). Where there is no reasonable expectation of privacy, the Fourth amendment does not apply. The O’Connor court was unanimous that a public employee may have a reasonable expectation of privacy in at least some parts of his or her government-provided office, including desk drawers and file cabinets. A plurality of the court held, however, that a public employee’s expectation of such privacy “may be reduced by virtue of actual official practices and procedures, or by legitimate regulation.” 480 U.S. at 717. Lower courts applying O’Connor in cases involving governmental employees’ claims of privacy in the contents of their office computer files have held that the reasonableness of such a claim is effectively determined by the governmental employer’s announced policy as to such privacy. Where the employer’s policy, communicated to employees, is that the employer has a right to inspect the contents of computer files or to monitor computer use, an employee has no reasonable expectation of privacy with respect to such files. E.g., U.S. v. Angevine, 281 F.3d 1130 (10th Cir. 2002); U.S. v. Simons, 206 F.3d 392 (4th Cir. 2000). Where the governmental employer has not communicated such a policy, the employee may have a reasonable expectation of privacy with respect to such files. E.g., U.S. v. Slanina, 283 F.3d 670 (5th Cir. 2002); Leventhal v. Knapek, 266 F.3d 64 (2d Cir. 2001). Muick v. Glenayre Electronics, 280 F.3d 741 (7th Cir. 2002) (Posner, J.), applied the foregoing analysis in the case of a private employer sued for allegedly having seized under color of federal law a laptop computer it had provided to an employee-a claim the court rejected on legal and factual grounds. In Ziegler, a criminal case, the 9th Circuit further applied the analysis in affirming a refusal to suppress evidence seized by a private employer in a search of its employee’s computer files carried out in conjunction with a federal criminal investigation. Ziegler was employed by Frontline Processing. The owner of Frontline’s Internet service provider notified FBI agent James Kennedy Jr. that a Frontline employee had accessed child pornography from a computer at Frontline. Kennedy contacted the administrator of Frontline’s information technology department, John Softich, who told him that Frontline had in place a firewall, which made possible continuous monitoring of employees’ Internet activities. Softich confirmed to Kennedy that a Frontline employee had accessed child pornography, and also told Kennedy that the employee was Ziegler, and that the department had already placed in Ziegler’s computer a device to record its Internet traffic by copying its cache files. Thereafter, Kennedy had a further conversation with an information technology department employee, William Schneider. The evidence was conflicting as to whether Kennedy instructed Schneider to make a copy of Ziegler’s hard drive or believed that one had already been made. In any event, after that conversation, Schneider obtained a key to Ziegler’s locked office, entered it, opened the computer and made two copies of the hard drive. Subsequently, Frontline voluntarily delivered to Kennedy the original hard drive from Ziegler’s computer and one of the copies. On the hard drive, FBI examiners found images of child pornography. After indictment, Ziegler moved to suppress the evidence gathered by Schneider. After the denial of his motion, Ziegler entered into a conditional plea agreement that permitted him to appeal the denial. Frontline’s information technology department routinely monitored all workplace computers. Through training and an employment manual, Frontline informed employees of the monitoring, and told them not to use company computers for personal matters. Ziegler did not claim to be unaware of Frontline’s policy or monitoring practice. The court found no need to resolve the conflict as to FBI agent Kennedy’s role in Schneider’s investigative activities because it found that Ziegler had no reasonable expectation of privacy in his computer files. Therefore, even if Kennedy had directed Schneider’s activities, the Fourth Amendment was inapplicable. Slip Op. at 9080 n.7. Following an analysis in TBG Insurance Services Corp. v. Superior Court, 96 Cal. App. 4th 443, 117 Cal. Rptr. 155, 161-62 (2002), of “the ‘community norm’ within 21st Century computer-driven businesses” (based on a survey of “this country’s major firms”), the Ziegler court concluded: “Social norms suggest that employees are not entitled to privacy in the use of workplace computers, which belong to their employers and pose significant dangers in terms of diminished productivity and even employer liability. Thus, in the ordinary case, a workplace computer simply ‘do[es] not provide the setting for those intimate activities that the [Fourth] Amendment is intended to shelter from government interference or surveillance . . . .Employer monitoring is largely an assumed practice, and thus we think a disseminated computer-use policy is entirely sufficient to defeat any expectation that an employee might nonetheless harbor.’ ” Ziegler, Slip Op. at 9087-88 (brackets in original; citations omitted). In O’Connor, Justice Antonin Scalia observed that “searches to retrieve work-related materials or to investigate violations of workplace rules . . . [are] of the sort that are regarded as reasonable and normal in the private-employer context.” 480 U.S. at 732 (Scalia, J., concurring). The Ziegler court noted some scholarly opposition to “the general lack of privacy in the modern workplace,” and added: “But in applying the Fourth Amendment we take societal expectations as they are, not as they could or (some think) should be.” Slip Op. at 9087. The social norm identified by the California Court of Appeal and the 9th Circuit no doubt reflects the institutional understanding of most large employers, and many other employers, that provide computers for use by employees. The cases, however, apparently reflect an actual subjective expectation of privacy-the employees plainly were engaged in conduct they did not intend or expect others to discover. Their expectation was unreasonable, however, because it was not one “that society is prepared to consider reasonable,” O’Connor, 715 U.S. at 709 (internal quotation omitted). Employees may need periodic reminders Sending and receiving personal e-mails and accessing the Internet for personal rather than business purposes from a computer in one’s own office generally are quick, easy and free, and are carried out in apparent solitude. The cases show that some employees engage in such activities even though they are on notice from their employers that the activities are subject to monitoring, discovery and disclosure. Employers have an interest that employees not use office computers for purposes that are unlawful (and may lead to prosecution and adverse publicity) as well a broader interest that they not use them for nonbusiness purposes. Employees presumably would be much less inclined to use them for such purposes if it were effectively brought home to them from time to time that such use may very well be monitored, and may land them in very serious trouble. Employers might take a variety of measures to reduce such misconduct, beyond initial training and distribution of policy manuals. They might frequently re-disseminate their policies on permitted use by employees of office computers and on actual monitoring of such use. They might make such a reminder part of the start-up procedure for their office computers. They might remind employees of possible adverse consequences for those who violate restrictions on use of office computers, and illustrate such consequences by disseminating brief descriptions of actual reported cases. Employers might also require from employees periodic affirmative acknowledgements that they are aware of the applicable policies and possible consequences of violations. Richard Cooper is a partner at Williams & Connolly in Washington. He can be reached via e-mail at [email protected].

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