Question:

I believe I have privacy rights in my office and in the personal files I place on the computer in my office. However, I was told that my employer could authorize a warrantless search of my office and the personal files stored on my computer. Is this correct?

Answer:

The answer depends on the facts of your situation. The Fourth Amendment of the United States Constitution, which protects you from unreasonable searches and seizures, may be invoked only if it can be shown that you have both a subjectively and objectively reasonable expectation of privacy in your office and computer. If you have such an expectation of privacy, then under the law, a warrant is usually required to search your office or computer without your consent. Under the law, valid consent to a search can be obtained from a third party who has common authority over your office and computer. Depending on the facts of your situation, your employer may have common authority over your office and computer, and may consent to the search of your office and computer without a warrant and without your consent.

A similar issue arose in the recent case of United States v. Ziegler. In that case, the employer informed the FBI that it believed its employee, Ziegler, was visiting internet sites in violation of federal law. The FBI requested information, and the Chief Financial Officer of the employer authorized the copying of the hard drive of Ziegler’s computer, which was then turned over to the FBI. No warrant was obtained.

Ziegler was arrested and prosecuted. He attempted to exclude the evidence that was obtained during the warrantless search.
The court analyzed whether Ziegler had a legitimate expectation of privacy in his office and the information on his computer and, if so, whether the employer could consent to the search. The court found that Ziegler had a subjectively and objectively reasonable expectation of privacy in his office because he did not share his office with others, he had a private password to access the computer, and he kept the office door locked. However, the court found that Ziegler’s employer was able to give consent to the warrantless search, because the employer had common authority over the office and the computer that would be searched. The court stated that even when an employee thinks his private office will not be searched, his expectation may be subject to the employer’s giving consent to a search of the office and computer it owns. The court also said that the employer could give valid consent to a search of the contents of the computer hard drive because the computer was the type of workplace property that remains in control of the employer even if the employee places personal items on it. The court relied on facts showing that Ziegler could not have reasonably expected that the computer was his personal property free from the control of his employer, including the fact that employees in this company were aware that the employer regularly monitored and reviewed internet activity by employees on their work computers, and employees were informed in writing that the computers were company owned and were not to be used for personal matters.

Therefore, even though you appear to have a subjective expectation of privacy in your office and workplace computer, and, depending on the facts, you may also have an objectively reasonable expectation of privacy in the same, you should be aware that your employer may give consent to a warrantless search of your office and computer because of your employer’s control over these items. You should review your employer’s handbook and policies on technology use and privacy, which should set forth your employer’s rules and requirements, and your rights in the use of your employer’s premises and equipment.
– – – – – – – – – – – – – – – – – – – – – – – – – –
Back to Menu- Work Place Law 2007 Articles