Need for Search Warrant, Quirky Question # 36
Quirky Question # 36:
We recently learned that one of our employees has illegal pornography on his work computer. We know we can discipline him (up to and including termination).The police recently requested a copy of his computer hard drive. Can we turn the hard drive over to the authorities even if they do not have a search warrant? Do we have to notify the employee that we are going to do so?
Yes to your first question; no to your second inquiry.
For the purposes of your inquiry, I will assume that you learned your employee had illegal pornography on his work computer when the police requested a copy of his hard drive and not before. My assumption is that if you had learned previously and independently that your employee was engaging in illegal conduct (here, possessing illegal pornography), your company would have taken responsive actions to remedy that situation, including, possibly, notifying appropriate law enforcement officials.
Courts continue to grapple with the issue of whether employees have expectations of privacy in their offices, including their computers, that generally would require investigative authorities to obtain a search warrant. This analysis can be affected by a company’s past practices (has the company allowed employees to use their company computers for personal use; has the company allowed employees to download their own music, photos, and programs onto the company computer; do the employees have responsibility for servicing their own computer programs themselves; does the company periodically review the data on the employees’ computers; are employees given their computers upon resignation or termination; are the employees allowed to purchase their computers upon resignation or termination; etc.). The answers to these and other inquiries may influence the calculus of whether an employee has a reasonable expectation of privacy in his or her company-issued computer equipment.
Another critical factor that bears on this analysis is what company policies have been promulgated regarding the employees’ computer use and access. If a company has clearly delineated policies stating that it owns all of the computer equipment provided for its employees’ use, and that it retains the right to take possession of and/or review employees’ computers and other electronic equipment, as well as the emails communicated via this equipment, or other data generated or stored on the equipment, these policies affect the employees’ expectations of privacy. Of course, there should not be a corporate disconnect between the policies on the company books and the company’s actual practices.
In early 2007, the question of police access to an employee’s computer, without the authorities first obtaining a search warrant, was addressed by the Ninth Circuit Court of Appeals. See, United States v. Ziegler, 474 F.3d 1184 (9th Cir.) (superceding opinion filed on 1/30/07).
In the first Ziegler decision, the Ninth Circuit held that the employee could have no expectation of privacy given the company’s well defined policies regarding company computers. Soon thereafter, however, the Ninth Circuit withdrew and revised its opinion, concluding that even in the context of company-owned computers and company policies specifying that the company had the right to access those computers at any time, employees nevertheless had a protectable 4th Amendment right against unreasonable search and seizure that required the police authorities to obtain a search warrant to access the materials on the computer.
Despite this analysis, the Ninth Circuit also found that the employer, which owned the computer gear, and which determined who had permissible access to its premises, was authorized to give “consent” to the search, obviating the need for the search warrant. Once the employer had authorized the police to have access to the company-owned computer, the police no longer needed to obtain a search warrant. (This analysis is akin to other contexts where a joint property owner consents to a police search even in the absence of a warrant.) Deservedly, the employee in Zeigler who had stored child pornography on his work computer, was toast.
As to your second inquiry (whether a company is obligated to inform an employee of the police request for access to the computer being used by the employee), your company has no obligation to apprise your employee of the decision to provide the police access to the computer. In general, employers are not obligated to inform employees of ongoing investigations, whether instituted by governmental investigative authorities or by the company itself. Indeed, there are times when providing such notice to the employee would undermine completely the purpose of the investigation and could alter its results. In the context of your questions, for example, if the employee had been apprised of the investigation, the evidence could have been deleted from the computer.
The bottom line is that generally employers do not have to require law enforcement authorities to obtain a search warrant to have access to a company-owned computer used by an employee. Whether there may be strategic reasons for requesting the investigative authorities to return with a warrant is another question for another day.