No reasonable expectation of privacy in files on work computer

Defendant Ziegler was arrested after his employer’s ISP tipped off the FBI that he was accessing some illegal pornographic websites while at work. At the trial court level, the defendant moved to suppress evidence obtained from his office computer, arguing that it had been searched in violation of his Fourth Amendment rights.

The court denied the motion to suppress, and the defendant sought review. On appeal, the Ninth Circuit affirmed. It held that given the circumstances, the defendant did not have a reasonable expectation of privacy in his work computer or the files contained on its hard drive.

Although it was undisputed that the defendant had a subjective expectation of privacy in the contents of the hard drive — the computer was password protected and kept in a locked office — the relevant inquiry was whether he had an objectively reasonable expectation of privacy. For a number of reasons, the Ninth Circuit held that such an expectation had been defeated.

Most significantly, the employer’s IT department had a policy of routinely monitoring the traffic crossing the company’s firewall, and had full administrative access to all computers in the facility. The defendant did not demonstrate that he was unaware of that monitoring policy. (A defendant bears the burden of showing a reasonable expectation of privacy. U.S. v. Caymen, 404 F.3d 1196 (9th Cir. 2005)).

The court looked to a number of other cases to support its conclusion. It readily endorsed the district court’s reliance on U.S. v. Simons, 206 F.3d 392 (4th Cir. 2000), a case with similar facts. It also embraced the holding of a California case called TBG Ins. Serv. Corp. v. Superior Court, 117 Cal.Rptr.2d 155 (Cal. Ct. App. 2002), to note that “community norms” tolerate employee monitoring of computer activity, so that companies can, for example, avoid liability for permitting a hostile work environment. These social norms “effectively diminish the employee’s reasonable expectation of privacy.”

U.S. v. Ziegler, — F.3d —-, 2006 WL 2255688 (9th Cir., August 8, 2006).