Workplace Privacy Rights – Part I

Electronic data exists on multitude devices for everyone. In other words, electronic information such as letters, emails, pictures, or videos are being stored on your electronic devices on a regular basis. Now, we should be cognizant of this process and take steps to protect the electronic information and promote privacy rights.

The Fourth Amendment was enacted to promote an individual’s right to privacy and states as follows:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The Fourth Amendment protects an individual’s privacy rights regardless of whether or not they are a citizen. So, stated otherwise, it protects the rights of noncitizens, illegal immigrants, and foreign nationals who may be in this country on a temporary basis. It applies to searches that are conducted by public officials and government agencies. In United States v. Jarrett, 338 F.3d 339 (4th Cir. 2003), the court ruled that a hacker who had found child pornography on another person’s computers, and subsequently turned them over to government officials, was not subject to the Fourth Amendment limitations. Also, a federal court has ruled that a person living with a suspect who possessed child pornography was not considered an instrument of the government when he turned over the inculpatory evidence to government officials.

The Fourth Amendment is subject to the exclusionary rule which can limit the admission of evidence that was illegally obtained. In essence, this rule makes evidence inadmissible if it falls under the “Fruit of the Poisonous Tree” Doctrine, which is a principle establishing that if evidence is illegally obtained, it cannot be admissible in court. Nevertheless, there are several exceptions to the so-called “exclusionary rule” which include the Inevitable Discovery Exception and Good-Faith Exception.

The state and federal courts have faced several important issues when it comes to electronic data and privacy rights. In Katz v. United States, 389 U.S. 347 (1967), the Supreme Court redefined the concept of reasonable expectation of privacy when the government secretly monitored defendant’s phone booth conversations. The court ruled in defendant’s favor because it held that defendant had a subjective expectation of privacy that society willingly recognized as reasonable. However, it is not an absolute right. For example, a person who knowingly exposes private information to the public from his own home does not have a subjective expectation of privacy.

The Fourth Amendment principles apply to workplace privacy rights. For example, the courts have held an employer that gives an employee access to a locker room to store her personal belongings by using her own lock must observe the employee’s reasonable expectation of privacy rights. Stated otherwise, even though the locker room was owned by the employer, the employee who was using her personal lock (and had not shared the lock’s code with her employer) was protected by these principles. Nonetheless, as stated above, this is not an absolute right as there are exceptions. For example, an employee who is using an employer’s computers, cannot have a reasonable expectation of privacy when he or she is using her work email to communicate with non-work-related parties. In United States v. Buckner, 473 F.3d 551, 554 (4th Cir. 2007), the district court held that individuals have a reasonable expectation of privacy if they use a password to protect their electronic files stored on personal computers. However, the Fourth Amendment applies to government actions and not to actions of private employers. See O’Connor v. Ortega, 480 U.S. 709, 716 (1987) for information.

Our law firm assists clients in matters related to workplace privacy rights. It’s important to know your legal rights and responsibilities when involved with internet transactions and communications. Please contact our law firm to speak with an internet attorney at your earliest convenience.