Court Denies Expectation of Privacy for Workplace Internet Access

August 9, 2006 (PLANSPONSOR.com) - The 9th US Circuit Court of Appeals has confirmed a lower court ruling that an employee accused of receiving child pornography had no reasonable expectation of privacy for his internet use on his workplace computer.

In its opinion, the appellate court said other courts have consistently held that an employer’s policy of routinely monitoring employee internet use precludes a reasonable expectation of privacy. Employees of Frontline Processing were told of the company’s monitoring practices and warned not to use the company’s computer for personal activities.

Frontline employee Jeffrey Ziegler compared his workplace computer to a desk drawer or file cabinet, which were given Fourth Amendment protection in another court case. The government objected to that argument, saying Ziegler could not expect privacy on a computer paid for by his employer and installed with a firewall and a department of personnel to monitor internet activity, also paid for by his employer.

The owner of Frontline’s internet service provider had contacted the FBI with a tip that a Frontline employee had accessed child pornography Web sites on a company computer. An FBI agent interviewed IT personnel at Frontline who confirmed they had seen instances of child pornography access by Ziegler in their routine monitoring activities.

The IT employees claim the FBI agent asked them to make a copy of Ziegler’s hard drive for use in a child pornography investigation, but the agent claims he did not make that request since one of the employees informed him that a backup had been made. The evening of the interviews, Frontline IT personnel obtained a key to Ziegler’s office and made two copies of his computer hard drive.

Frontline’s corporate counsel contacted the FBI and offered to cooperate and turn over Ziegler’s computer to the FBI, suggesting a search warrant would be unnecessary. Frontline provided the agent with the computer and one of the hard drive copies.

Ziegler was charged with a three-count indictment, including the charge of receiving child pornography. Ziegler filed a pretrial motion to suppress the evidence in the workplace computer, claiming his right to privacy under the Fourth Amendment. Ziegler cited the agent’s request to make a copy of his hard drive and the seizure of the computer without a warrant as violations of his Fourth Amendment rights. The district court in Montana denied his motion.

The opinion in USA v. Ziegler is here .

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