Employees and the Fourth Amendment

Today, a three judge panel from the Ninth Circuit withdrew its opinion in United States v. Zeigler and issued a new opinion.

As you may remember, the original Zeigler opinion, from August 2006, held that private employees have no reasonable expectation of privacy, and thus no Fourth Amendment rights, in their workplace computers. In January 17th's Circuit Court column on the topic, I argued that if employees have no protected privacy rights, then the government can enter a private workplace, without cause, without a warrant, with or without the employer's consent and search employee computers. I imagine the police could also copy your work laptop if you happened to be using it in a coffeeshop or some public place. The employer could try to sue, but the effort would be hampered by lack of damages, government immunity and the usual expense of going to court. The employee could not make a motion to suppress based on the privacy rights of the employer, nor would he have the personal right either to challenge the government's actions in a civil suit, or to suppress any discovered evidence.

One thing that some Circuit Court readers clearly didn't get is that the employee's privacy rights are extra cover for the employer. If the employee doesn't have rights, the government can search employer owned computers and use whatever they find their against any individual, whether employee or CEO. With employee privacy rights, police are dissuaded from searching and seizing without either a warrant or consent from the employer.

That's exactly what the new January 2007 opinion in Zeigler says. Building on the line of cases that says that employees have a reasonable expectation of privacy in their desk drawers and in their filing cabinets, the panel concludes that employees also have a REOP in their computers. Government agents need either a warrant or the consent of the employer before they can search. The agents in Zeigler got consent, the panel concludes, so Zeigler's motion to suppress fails, and he's no better off now than under the old opinion. But under the new reasoning, non-government employees and employers alike can brethe more easily.

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