Court Permits Search of Personal Computer in Workplace

While the Fourth Amendment of the United States Constitution provides broad protections when it comes to state-sponsored searches and seizures, there certainly are exceptions to this general rule. Indeed, a federal court has just held that an employee did not have a reasonable expectation of privacy in his personal computer he brought to work. Thus, the government was deemed to have properly searched his computer without a warrant, and he was not allowed to exclude the evidence seized from that computer - evidence of child pornography.

In the case of United States v. Barrows, the criminal defendant had served as the treasurer for a city in Oklahoma. He shared a workspace with a city clerk in an open area in the city hall. Even though a counter separated their work area from the public, there was very little privacy. Other city employees often entered this space to use a fax machine and photocopier, both of which were positioned only a foot from their common desk.

The defendant and the city clerk shared a computer and both of them accessed city records and programs on this computer. Because they could not use this computer at the same time, the defendant brought his own personal computer to work. He positioned his computer on the common desk and connected it through the city network to the common computer.

From that point onward, the defendant conducted all of his city work on his own personal computer. He neglected to install a password shield and he did not take active steps to exclude city employees from using his computer or accessing its files. In fact, he left the computer on at all times, even when he was away from the desk.

One day, the city clerk experienced difficulties opening the files on the city computer. She questioned whether the defendant's personal computer was the cause of the problem. She happened to mention this problem to a reserve police who was in the city hall that day to send a send a fax.

The officer first tinkered with the city computer, and then he went to the defendant's personal computer, which was on and running as usual. While maneuvering the programs on the defendant's personal computer, he noticed a series of files with sexually suggestive names. Upon opening a couple of these files, he found that they contained child pornography.

At that point, he and a sheriff seized the computer and then obtained a warrant to search the entire hard drive.

The defendant was convicted as a result of the child pornography on the computer. The defendant appealed his conviction, arguing that the evidence of child pornography was improperly discovered in the first instance without a warrant, because the officer violated his privacy rights under the Fourth Amendment. As a consequence, the defendant asserted that the incriminating evidence should have bee suppressed and not used against him.

The trial court and the appellate court disagreed.

As explained by the appellate court, notwithstanding the broad protections afforded by the Fourth Amendment, such protections are governed by a "reasonableness" standard. Thus, the key inquiry is whether the defendant here had a reasonable expectation of privacy in the contents of his personal computer. In this case, it was concluded that there was no such reasonable expectation.

Even though the defendant owned the computer in question and it was his own personal property, which normally could be an indicia of an expectation of privacy, any such privacy expectation was diluted when the computer was used for business purposes, explained the appellate court. This is especially the case where the computer was placed in a public place, was left on and running, and was not password or otherwise protected. And any remaining privacy expectation was further diminished by the fact that the computer was networked to the city computer.

As the appellate court reasoned, "those who bring personal material into public spaces, making no effort to shield that material from public view, cannot reasonably expect their personal materials to remain private."

Accordingly, by voluntarily placing his private computer into a public space and by failing to protect its contents from public inspection, the defendant did not have a reasonable expectation of privacy in his personal computer, and therefore, the officer's search did not constitute a Fourth Amendment violation.

At the end of the day, if you want to maintain your privacy rights under the Constitution, you yourself must keep your private matters private.

Eric Sinrod is a partner in the San Francisco office of Duane Morris LLP (http://www.duanemorris.com) where he focuses on litigation matters of various types, including information technology and intellectual property disputes. His Web site is http://www.sinrodlaw.com and he can be reached at [email protected]. To receive a weekly email link to Mr. Sinrod's columns, please send an email to him with Subscribe in the Subject line.

This column is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed in this column are those of the author and do not necessarily reflect the views of the author's law firm or its individual partners.