Ninth Circuit Court of Appeals Affirms That Employers May Consent to Government Search & Seizure of Employee's Private Office & Workplace Computer

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Breaking Developments In Labor and Employment Law

2/9/07

In a unanimous decision, a three judge panel of the United States Court of Appeals for the Ninth Circuit affirmed that an employer has the ability to give valid third party consent for a government search of an employee's private office and workplace computer located on the company premises.

In United States v. Ziegler, the defendant, Brian Ziegler, was convicted by a lower court of various criminal charges arising from his use of his workplace computer to view and download child pornography. Ziegler's Internet activity aroused the suspicion of his employer's Internet service provider, who discovered that he had been downloading child pornography. The Internet service provider informed the FBI. During the investigation, Ziegler's employer turned over to the FBI the hard drive from the company-owned computer used exclusively by Ziegler. Ziegler was eventually arrested, charged and convicted. Following his conviction, Ziegler appealed the trial court's denial of his motion to suppress the evidence from "his" computer's hard drive, claiming that the search and seizure violated the Fourth Amendment to the United States Constitution.

At issue on Ziegler's appeal were (1) whether an employee has an objectively reasonable expectation of privacy in his workplace office, and computer sufficient to implicate the

constitutional protections of the Fourth Amendment; and (2) if such expectation of privacy from governmental intrusion exists, whether the employer can give "valid consent" to a government search of an employee's office and workplace computer.

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