Ninth Circuit revisits employees' expectation of privacy in workplace computers

Earlier this week, the Ninth Circuit revised its opinion in United States v. Ziegler, 456 F.3d 1138 (9th Cir. 2006), in which it held that an employee had no objectively reasonable expectation of privacy in his workplace computer.  On reconsideration, the court concluded that the employee did have a reasonable expectation of privacy - at least with respect to government intrusion under the Fourth Amendment's prohibition on unreasonable search and seizure - because his computer was password protected and kept in a locked office that was not shared with others.  United States v. Ziegler, Case No. 05-30177(9th Cir., Jan. 30, 2007).  However, the court also concluded that, although the employee had an expectation of privacy vis-a-vis the government, the employer was not prevented from giving valid consent to a government search of the employee's computer as a "third party with common authority" over its office space and equipment.  The court relied heavily on the fact that the employer "had complete administrative access to anybody's machine," routinely monitored Internet traffic, and apprised its employees of its monitoring through training and an employment manual.

Although the new Ziegler decision represents a retreat from the Ninth Circuit's earlier position that an employer's computer-use policy could absolutely preclude an employee's expectation of privacy in his or her workplace computer with respect to government warrantless searches, it recognizes that the employer's rights under such a policy as a "third party with common authority" can effectively defeat an employee's Fourth Amendment objection to a search by the government.