* A federal appeals court ruled that employees have a reasonable expectation of privacy in the contents of their desks, cabinets, and computers, but that this expectation can be reduced or eliminated by policies or practices. A state agency received anonymous allegations that a senior level accountant was neglecting his duties in various ways, including the use of his office computer for personal purposes. These allegations caused the agency to inspect the employee’s computer without his consent. Investigators entered the employee’s office after business hours one evening through an open door, turned on his office computer, and reviewed the directories of files on the computer’s hard drive. There was no power-on password to gain access to the computer, but once the machine was turned on, some of the menu selections that appeared were password-protected. In order to perform their search, the investigators may have used a “boot disk,” which allows the computer to start up without encountering the menus normally found there. The inspection disclosed that the employee had a personal tax preparation program on his office computer that he presumably used in a tax preparation business he maintained separately from his duties for the agency. The employee was disciplined for violating agency policy. He later sued the agency, challenging the legality of the searches and the employment actions taken against him. A trial court dismissed the employee’s claim on the ground that he “could not reasonably expect complete privacy in the contents of his computer” because it was reasonable to expect “that other employees might view the directory structure and other contents of his computer in his absence.” The employee appealed.

A federal appeals court ruled that the search of the employee’s computer was unreasonable. It noted that the employee “had a reasonable expectation of privacy in the contents of his office computer.” It based this conclusion on a review of the access other employees had to the employee’s office. Most importantly, the court noted that the employee occupied a private office with a door; he had exclusive use of the desk, filing cabinet, and computer in his office; and he did not share use of his computer with other employees. It continued,

We are aware that public employees’ expectations of privacy in their offices, desks, and file cabinets, like similar expectations of employees in the private sector, may be reduced by virtue of actual office practices and procedures, or by legitimate regulation… . [W]e do not find that the [agency] either had a general practice of routinely conducting searches of office computers or had placed [the employee] on notice that he should have no expectation of privacy in the contents of his office computer.

The agency noted that it had an “anti-theft policy” that permitted the inspection of employees’ computers. The court disagreed, noting that the policy did not prohibit the storage of personal materials on office computers. Rather, the policy prohibited “using” state equipment “for personal business.” The court pointed out that an employee would not violate the policy by keeping a personal checkbook in an office drawer, even though it would take up space there. For the same reason, the court noted that “we cannot say that the same anti-theft policy prohibited [the employee in this case] from storing personal items in his office computer.”

The court acknowledged that the agency’s technical support staff had access to all computers in employees’ offices, and occasionally had to perform maintenance or search for a document in an unattended computer. But the court concluded that “this type of infrequent and selective search for maintenance purposes or to retrieve a needed document, justified by reference to the special needs of employers to pursue legitimate work-related objectives, does not destroy any underlying expectation of privacy that an employee could otherwise possess in the contents of an office computer.”

The court concluded, however, that the agency’s inspection of the employee’s computer was justified by the allegations of work-related misconduct.

Application. This case is important because the court recognized that both public and private employees may have a reasonable expectation of privacy in the contents of their offices, including their computers. As a result, unauthorized searches of employee computers may constitute an invasion of privacy, unless (1) the expectation of privacy is reduced or eliminated by employer practices or through appropriate communications to employees that the contents of their computers may be inspected at any time by the employer, or (2) employees consent to the inspection of their office computers. Leventhal v. Knapek, 266 F.3d 64 (2nd Cir. 2001).

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