Wednesday, January 31, 2007
Court: Employer May Consent to Search of Worker’s Computer
By TINA BAY, Staff Writer
An employee whose office was not shared with co-workers and was kept locked had a reasonable expectation of privacy in his workplace computer, the Ninth U.S Circuit Court of Appeals concluded yesterday.
However, the panel ruled, a warrantless search of the employee’s office computer based on a tip that he had used it to access child pornography web sites nonetheless did not violate his Fourth Amendment rights.
In its now-withdrawn Aug. 8 decision, the court had affirmed U.S. District Judge Richard F. Cebull’s ruling denying the suppression motion of alleged child pornography offender Brian Ziegler, on the ground that he “had no objectively reasonable expectation of privacy in his workplace computer and thus no standing to invoke Fourth Amendment protection.”
On rehearing, the panel again said that Cebull, who sits in the District of Montana, was correct in denying the motion, but arrived at the conclusion on entirely different grounds.
Ziegler did have a reasonable expectation of privacy in his office and workplace computer, , but the search of his workplace computer was excepted from the constitutional warrant requirement because it was authorized by an officer of the company, the judges held this time
Writing for the panel, Judge Diarmuid F. O’Scannlain explained that warrantless searches are valid where the government obtains voluntary consent either from the criminal suspect or from a third party with “common authority” over the premises or items the government seeks to inspect.
Ziegler’s employer, Frontline Processing, a processor of online payments, exercised common authority over Ziegler’s computer because it had complete administrative access to all of its employees’ computers and, with employees’ knowledge, had installed a firewall to monitor their Internet traffic, O’Scannlain wrote. Therefore, the judge said, although Ziegler had a reasonable expectation of privacy in his private office, Frontline could validly consent to a search of Ziegler’s office computer.
“The contents of his hard drive…were work-related items that contained business information and which were provided to, or created by, the employee in the context of the business relationship. Zeigler’s downloading of personal items to the computer did not destroy the employer’s common authority.”
Ziegler came to the FBI’s attention in 2001, an agent testified, when the owner of Frontline’s Internet-service provider notified Special Agent James A. Kennedy that a Frontline employee had visited child pornography web sites from a workplace computer. Based on information from the company’s technology administrator, access to the sites was traced back to the office computer of Ziegler, who had been the company’s director of operations since August 2000.
Technology department employees told Kennedy that Frontline owned and routinely monitored all workplace computers, and had already placed a monitor on Ziegler’s machine to record its Internet traffic by copying its cache files.
Co-Workers Aid FBI
Based on the employees’ statements, Kennedy instructed them to make a copy of Ziegler’s hard drive because he feared it could be tampered with before the FBI could make an arrest. The employees obtained a key to Ziegler’s private office from Frontline Chief Financial Officer Ronald Reavis, opened the computer, and made two copies of the hard drive.
Frontline’s corporate counsel later told Kennedy the company would cooperate with the FBI’s investigation and voluntarily turn over Ziegler’s computer to the FBI—which Kennedy said he understood as meaning a search warrant would be unnecessary. Reavis delivered Ziegler’s computer to Kennedy, and many images of child pornography were discovered by the FBI’s forensic examiners.
After being indicted on charges of receiving and possessing child pornography in May 2003, Ziegler pled not guilty and moved to suppress the images retrieved from the search of his workplace computer.
The case is United States v. Ziegler, 05-30177.
Copyright 2007, Metropolitan News Company