Alaska Employment Law

Looking for evidence of computer pornography, company officials, at the request of the government, searched the office and computer of a manager.  (The officials thus became de facto government employees.) They turned over the incriminating material to the FBI.  In the ensuing criminal prosecution, the employee moved to suppress the results of the search; the motion failed.  The District Court found that the employee had no reasonable expectation of privacy in the computer files.  

On appeal, the 9th Circuit panel affirmed, but held that a) the employee did have a reasonable expectation of privacy in his office (unshared, and kept locked) and therefore in the office contents (including the computer), but b) the government did not need a warrant because the company, as owner of the office and computer, could (and did) validly consented to the search (because its IT people had log-in capacity, and operated a monitoring program).   U. S. v. Ziegler, 474 F.3d 1184 (9th Cir. 2007).

By a vote of 16-11, the 9th Circuit yesterday denied en banc rehearing of that panel opinion.    The dissenting judges argue that an employer’s announced policy of electronic monitoring of a computer does nto confer consent to enter into locked offices.   Orin Kerr of Volokh Conspiracy defended the panel decision left intact by the recent vote.