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John, a municipal employee, shares a workspace with Susan in an open area of city hall. Their work area is separated from the general public by a counter and other employees regularly enter their workspace to use the fax machine and photocopier. In addition to sharing desk space, John and Susan also share a computer, which they both use to access city records and programs. Because they could not both use the computer at the same time, John brought his personal computer to work, placed it on their common desk and networked it to the common computer. From then on, John conducted all of his work on his personal computer. Soon after, Susan started having problems opening files on the city computer. She asked Bob, a coworker, for assistance. When Bob noticed that John was running a file sharing program, he accessed John’s computer and discovered files containing child pornography. He immediately contacted the sheriff who seized the computer and obtained a warrant to search the hard drive. Arguing that he possessed a legitimate expectation of privacy in his personal computer, John tried to have the evidence discovered on his hard drive suppressed. Does John have a reasonable expectation of privacy in his personal computer?
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Answer: |
In a case with similar facts, a court ruled that an employee did not have a reasonable expectation of privacy in his personal computer. In determining whether the employee’s claim to privacy from the government intrusion was reasonable, the court examined: (1) the employee’s relationship to the item seized; (2) whether the item was in the immediate control of the employee when it was seized; and (3) whether the employee took actions to maintain his privacy in the item.
Ownership of the computer. Although the employee argued that ownership of his computer entitled him to Fourth Amendment protection from unreasonable search and seizure, the court noted that ownership was not dispositive. “The significance of personal ownership is particularly weakened when the item in question is being used for business purposes,” the court stated. Noting that the employee voluntarily brought his personal computer to a public place for work-related use, the court concluded that, under those circumstances, mere ownership of the computer was not enough to demonstrate a subjective expectation of privacy or to make that expectation reasonable.
Expectation of privacy was unreasonable. The court also found it significant that the employee failed to password protect his computer, turn it off, or take any other steps to prevent third-party use. “Given these facts, we are hard-pressed to conclude that [the employee] harbored a subjective expectation of privacy. He certainly did not possess a reasonable one,” the court stated.
The court next addressed the employee’s argument that he reasonably expected that the contents of his computer would remain private because he never invited anyone to use his computer. By knowingly networking his machine to the city computer for the express purpose of sharing files, the employee must have contemplated at least some third-party access, the court stated. Not only did he know that the contents of his computer were not completely private, the court reasoned, he also knew when he chose to relocate his computer to city hall that he would be working in a public place. Thus, the court concluded, even if the employee did possess a subjective expectation of privacy, his failure to take affirmative measures to limit other employees’ access made that expectation unreasonable. The employee voluntarily moved his personal computer into a public space and took no actions to protect its contents from public inspection. Consequently, he did not enjoy a reasonable expectation of privacy.
Cite: US v Barrows (10thCir 2007) 154 LC ¶60,394.
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