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A New Haven, Conn., criminal defense lawyer wants the state Supreme Court to recognize that employees have some expectation of privacy when it comes to their workplace computers — even if the material they are viewing or downloading is child pornography. Constitutional issues related to workers’ expectations of privacy in their offices have been addressed with mixed results before the U.S. Supreme Court and the 2nd U.S. Circuit Court of Appeals, among other jurisdictions. But Connecticut’s highest court has yet to take a stance in the matter, according to lawyer Diane Polan. Polan represents Antonio Lasaga, a former geology and geophysics professor at Yale University who was convicted on state and federal charges last year after police searched his office for child pornographic material. At oral argument before the state Supreme Court Oct. 20 in State v. Lasaga, Polan argued in favor of granting Connecticut citizens a reasonable expectation of privacy in using their workplace computers. Lasaga pled nolo contendre to six felony charges, including two counts of prompting a minor in an obscene performance, two counts of sexual assault in the first degree and two counts of risk of injury to a minor. He was sentenced to 20 years in jail with 10 years of special parole on the state charges. In federal court, he received a 186-month sentence on child pornography charges. Polan is appealing the denial of a 2002 motion to suppress by New Haven Superior Court Judge Bruce Thompson, who ruled that Lasaga did not have a reasonable expectation of privacy because he failed to make his computer files inaccessible to other authorized users. In her brief to the state Supreme Court, Polan argued that, as a Yale professor who was the registered owner of the computer in the school’s geology department, where several people had passwords and the authority to gain access to the same computer files, Lasaga did not have to do anything “extra” to enjoin an expectation of privacy in the pornographic material stored in his computer files. “The trial court’s reasoning is analogous to concluding that a person who does not install a burglar alarm at her home has forfeited her expectation of privacy,” Polan maintained. She added that Lasaga’s case was similar to the 2nd Circuit’s 2001 ruling in Leventhal v. Knapek, in which it held that a public employee had a reasonable expectation of privacy in his workplace computer, and that the search of his computer was without warrant under the Fourth Amendment. In Knapek, the 2nd Circuit noted the employee had a private office door with exclusive use of the office equipment, including the computer. Though there was no public access to the office, the court noted that computer technicians and others had regular access to the employee’s computer files. Polan said, like in Leventhal, Lasaga had a “subjective and objectively reasonable” expectation of privacy in the files he downloaded and stored on his workplace computer because he, too, had a private office, with a door that closed. Yale policy of extending privacy to “electronic expressions,” in effect at the time of Lasaga’s employment, also bolsters her client’s case, Polan added. But Senior Assistant State’s Attorney James Killen said the high court may sidestep the privacy issue, because the appeal also focuses on more fact-based issues such as the sufficiency of the search warrant used to obtain evidence against Lasaga. Monique Mattei Ferraro, an attorney with the Department of Public Safety’s computer crime laboratory, said that 44 percent of the department’s computer crime investigations focus on child pornography. She said the number of child pornography cases in the state has risen dramatically, from 45 in 1999 to 282 last year.

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