Tag Archives: data privacy

Employer did not violate employee’s privacy by accessing personal laptop

Sitton v. Print Direction, Inc., — S.E.2d —, 2011 WL 4469712 (Ga.App. September 28, 2011)

A Georgia court held that an employee using a personal laptop to conduct business for a competitor did not have an invasion of privacy claim when his employer busted him at work using the laptop to send email.

Plaintiff-employee worked for a printing company. His wife also owned a printing business. On the side, plaintiff would broker printing jobs, sending them to his wife’s company. He would bring his own laptop to work and use that to conduct business for his wife’s company while at work for his employer.

One day, the boss came into plaintiff’s office (apparently when plaintiff was not in the room) and saw that the computer screen on plaintiff’s computer showed a non-work related email account, with messages concerning the brokering of print jobs to the wife’s company. The boss printed out the email messages.

Plaintiff sued, claiming, among other things, common law invasion of privacy and violation of a provision of the Georgia Computer Systems Protection Act. The case went to trial, and plaintiff lost. In fact, he ended up having to pay almost $40,000 to his employer on counterclaims for breach of loyalty. Plaintiff sought review of the trial court’s decision. On appeal, the court affirmed.

The appellate court affirmed the trial court’s finding that the boss’s access to plaintiff’s computer did not constitute common law invasion of privacy based upon an intrusion upon plaintiff’s seclusion or solitude, or into his private affairs. The court held that the boss’s activity was “reasonable in light of the situation” because:

  • He was acting in order to obtain evidence in connection with an investigation of improper employee behavior,
  • The company’s interests were at stake, and
  • He had “every reason” to suspect that plaintiff was conducting a competing business on the side, as in fact he was.

To bolster this holding, the court cited from a Georgia Supreme Court case that said, “[T]here are some shocks, inconveniences and annoyances which members of society in the nature of things must absorb without the right of redress.”

Court dismisses class action against MySpace for violation of the Stored Communications Act

Hubbard v. MySpace, 2011 WL 2149456 (S.D.N.Y. June 1, 2011)

Plaintiff, who sued on behalf himself and others similarly situated, claimed that MySpace improperly turned over account information and private messages to law enforcement, even though there was a search warrant. Plaintiff claimed this violated the Stored Communications Act, 18 USC 2701 et seq.

MySpace moved to dismiss. The court granted the motion.

The version of the Stored Communications Act in effect at the time of the alleged wrongful disclosure in this case provided that a search warrant seeking the information must issue from a federal court “with jurisdiction over the offense under investigation,” or be “an equivalent State warrant.”

Plaintiff argued that the warrant sent to MySpace was not sufficient under the SCA (and should have been ignored) because (1) the state magistrate did not have jurisdiction to hear the felony that the cops were investigating plaintiff for, and (2) the magistrate did not have the power to issue search warrants across state lines.

The court rejected both of these arguments. In determining the warrant to be “an equivalent State warrant,” it looked to the way federal magistrates issue warrants in SCA cases. It held that the phrase “jurisdiction over the offense under investigation” refers to the power to issue warrants, not to the power to ultimately try the case. And the court looked to the legislative history around the Patriot Act amendments to conclude that SCA investigations give magistrate judges special powers to direct search warrants across state lines, because having to require cooperation with the courts in which an ISP actually exists might allow enough time for a terrorist to get away or strike again.

This case is worth noting for the wide scope the court establishes for valid search warrants under the SCA. It is also worth noting that the SCA has since been amended to make the scope more clearly this broad. 

Lawsuit against state officials for privacy violation moves forward

Welch v. Theodorides-Bustle, — F.Supp.2d —, 2010 WL 22365 (N.D. Fla., January 5, 2010)

Plaintiff sued the Florida Department of Highway Safety and Motor Vehicles and a number of state officials for violation of the federal Driver’s Privacy Protection Act, 18 USC §2721-25. Plaintiff claimed that the defendants turned over a large amount of protected personal information to a private party, and that that party then further disclosed the information to another entity that published the information on the web.

Florida driver

As a result, the personal information of a number of Florida drivers became available for viewing online by anyone.

The defendants moved to dismiss the suit for failure to state a claim. The court denied the motion.

There is an exception to the Driver’s Privacy Protection Act’s prohibition on disclosure of personal information when the disclosure is made by a government agency “in carrying out [the agency's] functions.” The defendants did not deny that their conduct would violate the Act, but argued that the exception applied. The defendants essentially argued that the mere fact that the disclosure was made by a governmental entity made the disclosure to be automatically carried out in connection with that agency’s function.

The court rejected this ipse dixit assertion, holding that disclosure by a government agency being treated as automatically protected would accordingly make any violation of the Act by the government impossible.

Similarly, the court rejected the defendants’ argument that language in the contract with the entity to which the information had been provided rendered the disclosure proper. The receiving entity promised to use the information only for a proper purpose. But the self-serving recitals in that agreement, without specifying in detail what a proper purpose would be, would not bind third parties.

Alligator car photo courtesy Flickr user jeffdhartman under this Creative Commons license.