Fourth Amendment To The United States Constitution - Computers and Privacy

Computers and Privacy

Over the last decade, courts adjudicated whether the government can access evidence of illegal activity stored on digital technology without violating the Fourth Amendment.

Many cases discuss whether incriminating evidence stored by an employee in workplace computers is protected under the reasonable expectation of privacy. In a majority of cases, employees do not have a reasonable expectation of privacy for electronic communications at work. However, one federal court held that employees can assert the attorney-client privilege with respect to certain communications on company laptops.

On January 30, 2007, the United States Court of Appeals for the Ninth Circuit in United States v. Ziegler, 497 F.3d 890 reversed its earlier August 2006 decision upon a petition for rehearing. In contrast to the earlier decision, the Court acknowledged that an employee has a right to privacy in his workplace computer. The court also found that an employer can consent to searches and seizures that would otherwise be illegal.

In Ziegler, an employee had viewed at work websites of child pornography. His employer noticed the conduct, made copies of the hard drive, and gave the FBI the employee's computer. At his criminal trial, Ziegler filed a motion to suppress the evidence on the ground that the government violated the Fourth Amendment rights. The Ninth Circuit allowed the lower court to admit the evidence. After reviewing the relevant Supreme Court opinions on a reasonable expectation of privacy, the court acknowledged that Ziegler had a reasonable expectation of privacy at his office and on his computer. However, the court found that the employer could consent to a government search of the computer without infringing on the Ziegler's Fourth Amendment rights.

On March 11, 2010, the United States Court of Appeals for the Eleventh Circuit ruled, in Rehberg v. Paulk, 598 F.3d 1268, that a person does not have a reasonable expectation of privacy in an e-mail once any copy of the communication is delivered to a third party.

On December 14, 2010, in United States v. Warshak, the United States Court of Appeals for the Sixth Circuit ruled that a person has a reasonable expectation of privacy in his emails and that the government violated Warshak's Fourth Amendment rights by compelling his internet service provider to turn over his emails without first obtaining a warrant based upon probable cause.

On January 3, 2011, in The People v. Gregory Diaz, the Supreme Court of California ruled for allowing warrantless search by the police of suspects' cell phones at the time of the arrest, on the grounds of preventing destruction of evidence such as text messages:

the loss of privacy upon arrest extends beyond the arrestee's body to include “personal property... immediately associated with the person of the arrestee” at the time of arrest. this loss of privacy entitles police not only to “seize” anything of importance they find on the arrestee's body, but also to open and examine what they find.