Whose E-mail Is It Anyway?

Originally published June 2007 (No. 1)

By Joseph Poluka & Michelle Gitlitz Courtney

White Collar Alert: For the Defense

As they have in many other areas of life, the Internet and e-mail have raised nettlesome issues concerning the scope of workplace "privacy." Can an employer consent to a government search of the contents of an employee's computer, or must the government obtain a search warrant to do so? If an employee emails his attorney from a work computer, is the e-mail protected by the attorney-client privilege, or has the privilege been waived? How a business drafts and implements its Internet usage policy may well determine the degree of privacy its employees enjoy in their e-mails.

As Justice Stevens put it, "it would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology." Kyllo v. United States, 533 U.S. 27 (2001). Indeed, the courts increasingly are being asked whether an employee has an expectation of privacy in a workplace computer sufficient to suppress evidence retrieved from the computer in violation of the Fourth Amendment to the U.S. Constitution. See, e.g., United States. v. Ziegler, 474 F.3d 1184 (9th Cir. 2007); United States v. Simons, 206 F.3d 392 (4th Cir. 2000). A defendant may invoke the protection of the Fourth Amendment only if the employee had a legitimate expectation of privacy in the workplace computer and the images and e-mails stored on that computer. The employee bears the burden of showing both a subjective expectation of privacy and an objectively reasonable expectation of privacy. The subjective expectation of privacy is relatively easy to prove by showing, for example, that the employee used an individual log-in and password to gain access to the computer.

However, showing that the employee's expectation of privacy in a workplace computer is objectively reasonable poses a greater difficulty. Courts use the following factors to determine whether an employee has an objectively reasonable expectation of privacy:

Whether the employer has complete administrative access to employee computers;

Whether third parties have access to the computer/e-mail;

Whether the employer regularly monitors Internet access;

Whether e-mail traffic is monitored by the employer; and

Whether employees are informed through training or an employment manual that computers are not to be used for personal activities.

In Simons, one of...