The Ninth Circuit Court of Appeals recently ruled that under the Fourth Amendment, in the absence of a warrant, an employer could consent to a governmental search of an employee’s office and workplace computer without the employee’s knowledge or consent.  United States v. Ziegler, No. 05-30177 (9th Cir. 1/30/07).
In Ziegler, the employer discovered that an employee, Ziegler, had accessed child pornography websites from his workplace computer.  In the course of an investigation by the FBI, the employer voluntarily (without a warrant) turned over Ziegler’s hard drive and a copy of the hard drive to the FBI.  Ziegler brought a motion to suppress the evidence obtained from the search of his workplace computer on the ground that it was obtained in violation of the Fourth Amendment.
While the Ninth Circuit determined that Ziegler had a reasonable expectation of privacy in his workplace and office computer, they concluded that the search at issue complied with the Fourth Amendment because proper consent for the search had been obtained.  The Court observed that consent may be given by the defendant, but may also be “obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.”  (citing U.S. v. Matlock, 415 U.S. 164, 171 (1974)).  The Court determined that the employer could give valid consent to search the hard drive of Ziegler’s workplace computer 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].'”
In Ziegler, the employer advised its employees in training and through its employment manual that the company monitored internet access, and the company did in fact regularly monitor employee internet access.  The employees were also advised that the the computers were owned by the company and not to be used for personal activities.  Under these circumstances, the Court held that Ziegler could not have reasonably expected that the computer was his personal property, over which the employer had no control.  The fact that the hard drive also contained personal items did not destroy the employer’s “common authority” over the computer.
Keesal, Young & Logan Employment Group