Decision Regarding Search of Employee’s Computer Is Instructive for All Employers

Volume 6, Issue 2
February 16, 2007

Recently, the Ninth Circuit Court addressed the issue of a private employee's rights under the Fourth Amendment to the United States Constitution when evidence of criminal behavior is obtained from that employee's work computer. This decision, reached in a criminal case, is important to all employers who may monitor and/or search employees' computers or offices.

In the case of United States v. Ziegler, No. 05-30117 (9th Cir. Jan. 30, 2007), Jeffrey Ziegler faced a criminal indictment for receipt and possession of child pornography and obscene material in violation of federal laws. The evidence against him had been obtained by his private employer, Frontline Processing, from his work computer and given to the Federal Bureau of Investigation. Specifically, an FBI agent visited the employer after receiving a tip from a Frontline vendor (its internet-service provider) that a Frontline employee had accessed child-pornographic websites from a Company computer. After meeting with the agent, Frontline IT personnel, at the direction of a Company principal, entered the employee's office and made copies of his hard drive which the Company then provided to the FBI.

Ziegler moved to suppress the evidence obtained by the government from his hard drive, arguing that the government violated the Fourth Amendment. In analyzing Ziegler's claim, the Ninth Circuit Court found that private employees retain "at least some expectation of privacy in their offices" from government intrusions. The Court determined that Ziegler had an objectively reasonable expectation of privacy in his office because he did not share his office with coworkers and kept his office locked. As such, any governmental search of that space needed to comply with the Fourth Amendment. The Court next determined that the search of Ziegler's office computer by Frontline's IT personnel constituted governmental conduct because the IT personnel acted as "de facto government agents" by trying to assist the government.

Ultimately, however, the Court determined that the search of Ziegler's computer was not unreasonable under the Fourth Amendment because Frontline consented to the search. The Court explained that Frontline could "give valid consent to a search of the contents of the hard drive . . . 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 highlighted the fact that the Company regularly monitored computer usage, had installed a firewall, notified employees of their monitoring efforts through a handbook and training, and notified employees that the computers were Company property which should not be used for personal matters. As such, Ziegler could not have reasonably expected that his computer was "his personal property, free from any type of control by his employer."

The decision in Ziegler is instructive for private and public employers and highlights the need for specific policies governing the use and monitoring of office computers as well as other company equipment and space. Ziegler also reminds us that private employers can easily find themselves acting as government "agents" simply by cooperating in an investigation. While employers can and often should legitimately cooperate in such investigations, caution and a careful analysis of the situation and potential results of that cooperation are needed.

To view a copy of the Ziegler decision, click here.

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.