Jottings By An Employer's Lawyer

Wednesday, January 31, 2007

9th Cir. Corrects 4th Amendment Mistake, But Employer's Right to Monitor Computer Survives

Rarely do I venture into the criminal law domain, but sometimes there is an overlap between criminal and employment law. Contents of a company owned computer — when those contents involve child pornography — is a good example.

In August, the 9th Circuit faced with such a case held that an employee of a private sector company had no 4th Amendment expectation of privacy so that a warrantless search of his company owned computer was not unreasonable and the results of the search could be used against him in a criminal proceeding. U.S. v. Ziegler (9th Cir. 8/8/06) [pdf] . That resulted in considerable consternation for 4th Amendment scholars such as Orin Kerr at the Volokh Conspiracy, whose post, Ninth Circuit Mostly Eliminates Private-Sector Workplace Privacy Rights in Computers points out what the 9th Circuit had done in their opinion, and goes on to show why it was wrong.

From an employer's viewpoint, the decision was fine because it did nothing to support an argument that an employee had a privacy right that might bar such a search by an employer. However, the effort to get the court to change its mind which was soon undertaken, raised the possibility that if it did so, the court might say something that would resurrect that fear.

But, if you were worried, you didn't have to be, as yesterday the 9th Circuit panel withdrew its original decision, replacing it with this one. It corrected the 4th amendment problem, at least to Orin Kerr's satisfaction, New Ninth Circuit Decision in Ziegler, doesn't hurt the employer's position and as an added bonus for those who didn't want to see a child pornographer off the hook, reached the same result — there was a valid search that allowed the contents found on the computer to be used in the criminal prosecution.

The difference? Instead of finding that the employee had no reasonable expectation of privacy as against a search by the police, the court found that the employer had the power to search, and thus to consent to the search, which it did.

A nice ending for all, except of course Ziegler.


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