Home -> Law Blog Directory -> Intellectual Property Law Blogs -> IBLS Internet Law Blog

Intellectual Property Law

: IBLS Internet Law Blog

Is there Reasonable Expectation of Privacy or Confidentiality on Employer-Furnished Laptops?

By Martha L. Arias

An employee has no expectation in workplace computer files where company guidelines and policy explicitly inform the employee that no expectation of privacy exists."  This is a well settled principle of law held in Muick v. Glenayre Elecs, 280 F.3d 741, 743 (7th Cir. 2002) and cited by the 2nd, 7th, 8th, 9th, and 10th Circuit Courts.  Yet, this principle does not utterly elucidate the legal issues raised by the employer/employee rights on company-owned laptops.  This article briefly illustrates on the difference between private employee's (public employees are subject to different rules) assertion of privacy and confidentiality rights on files he saves in employer-furnished laptops in the United States.

 

An employee may assert, depending on the facts of his case, a privacy and/or confidentiality claim on documents he saves in his employer-furnished laptop.  It is important to note that these assertions usually come when the employer detects some irregularity on the employee"s behavior and orders, or files a motion to compel, discovery of the laptop's hard drive.

U.S. case law shows that nearly all privacy claims are based on the Fourth Amendment, Fifth Amendment or Common Law claims. 

If the employee asserts a Fourth Amendment, Fifth Amendment or Common Law privacy claim on documents (including e-mails, photographs, blog comments, etc.) he saved in an employer-furnished laptop, the issue goes to whether there is an expectation of privacy in that laptop.  Nowadays, this issue is easily solved by looking at the company's employment manual, if any. Must U.S. companies possess corporate employment manuals where it is clearly explained to the employee that there is no expectation of privacy in the use of computer or any other office equipment.  Employees are provided a copy of these manuals and, in most cases, they sign an acknowledgement form stating that the employee received a copy of the manual and abide by its rules.   Muick, the above-referenced case, is an example of a privacy claim on files saved on workplace laptops when the corporate manual explicitly warned the employee of the lack of privacy on the use of the company equipment.

Muick received and possessed illegal material in a company-furnished laptop.  Muick claimed 4th and 5th Amendment right to privacy and some other Common law privacy claims.  Muick had received a corporate manual stating that he had not right to privacy on the laptop furnished to him and that the same laptop could be subject to inspection by the company's officials.   Thus, the court granted summary judgment for the company on these two Federal privacy claims by the employee.

As said before, privacy claims are also based on Common Law principles, which are not as clear-cut as the Federal Privacy claims when there is a corporate manual on the use of computer equipment.  Common law privacy arguments vary depending on the facts, the state law and, I should say, the attorney's skills.  Muick filed several common law privacy claims like the right to seclusion and promissory estoppel.   Both claims were dismissed for failure to state a claim upon which relief could be granted.  Employee's privacy contentions based on common law are unsuccessful in most of the cases; again, corporate manuals are an excellent tool to shield employers from privacy arguments when it comes to laptops information. 

Confidentiality on privileged information is another claim employees may assert on documents found in his employer-furnished laptop.    Privileged information may refer to attorney-client information, attorney work product immunity, marital communication privilege, etc.   According to Curto v. Medical World Communs., Inc., 99 Fair Empl. Prac. Cas. (BNA) 298,   Muick and other similar cases did not undertake the issue about confidentiality on privileged information.  Yet, a very recent September 2007 decision ruled on this important issue.    Sims v. Lakeside School, 2007 WL 2745367 (W.D.Wash. Sept. 20, 2007). 

In Sims, Lakeside School (Lakeside) was the employer and it filed a motion to compel review of the employee (Sims) laptop hard drive, which had been furnished by Lakeside to Sims to perform activities within the scope of the employment.  Sims opposed this motion to compel asserting both privacy and confidentiality claims.  The court denied any privacy claim on the information stored in the hard drive because there was not expectation of privacy according to the employee manual.   Yet, the confidentiality argument took an interesting twist.  The court granted motion to compel discovery of the content in the laptop hard drive excluding the following: (1) web-based generated e-mails (those e-mails different than the school's e-mail- yahoo, hotmail, etc); (2) communications between Sims and his wife (marital communications privilege); (3) communications between Sims and his attorney (attorney-client privilege).  The court asked Lakeside to provide a list of the laptop files to the parties so Sims had an opportunity to select any privileged files.  The costs of this forensic discovery were to be paid by Lakeside.  

Thus, employee or corporate manuals triumph over employee's privacy claims on corporate-furnished laptop files. Yet, privileged communications triumph over employee manuals, even if those communications are made through the use of employer-furnished laptops and no matter the employee manual. Makes sense right? It is refreshing to know that our privileged communications survived the electronic communication era.   Employers may take away employee's privacy rights on the employer's computers or laptops, especially when they so notify.  But, employers should not be allowed to swipe people's long-standing privileged communications even if they were conducted using the employer's laptop.  Indeed, the court in Sims said "Notwithstanding defendant Lakeside policy in its employee manual, public policy dictates that such communications shall be protected to preserve the sanctity of communications made in confidence," and cited an old U.S. Supreme Court case, United States v. Louisville & Nashville R.R., 236 U.S. 318, 336, 35 S. Ct. 363, 369, 59 L. Ed. 598 (1915).  This Supreme Court case recognized that, as public policy, it is important to protect and encourage candid communication between clients and their attorneys by protecting the confidentiality of those communications. 

Hence, for those naïve enough to still use their employer's laptops to send compromising letters to their wives or to their attorneys (about the case against the employer?), we may inform that their innocence is still legally protected by the privileged communications concept.   However, no reasonable expectation of privacy exists in files found in these laptops when an employee manual has explicitly so informed.   

Full post as published by IBLS Internet Law Blog on January 08, 2008 (boomark / email).