Employers have power over computers following landmark case

Analysis

Employees have been told that they do not have privacy over material stored on work computers.

Employees have been told that they do not have privacy over material stored on work computers.

 

A court in New Jersey has said that files stored on a work-owned computer can be accessed and searched if the company gives permission even if the person does not. This follows a case where one user was convicted of stealing $650,000 from his employer which came to light after searching through the laptop and computer at work.

 

The individual was convicted but argued that he had a reasonable expectation of privacy in relation to material on the computers at work which was password protected, however the Superior Court of New Jersey found otherwise.

 

Judge Marie Simonelli said in her ruling: “(they) had no reasonable expectation of privacy in the personal information stored in his workplace computer. Even if (they) had a subjective expectation of privacy because he used a confidential password, that expectation was unreasonable under the facts of this case.”

 

The person argued that he had a right to privacy because he had a private office and had put passwords on the computers to protect them from third party access. Though the court found that the person had no expectation of privacy, even if he believed he did.

 

Simonelli said: “Neither the law nor society recognize as legitimate (the person)'s subjective expectation of privacy in a workplace computer he used to commit a crime.”

 

Ben Doherty, an employment law specialist with Pinsent Masons, said that if the same thing happened in the UK employers would be safe investigating the issue as long as they were convinced a serious incident had taken place.

 

He said: “If an employer had a reasonable suspicion that sombody had been stealing from them, whether £650,000 or £6.50, I would be very happy for them to go and look at that computer. The way in which an employment tribunal looks at it is if an employer's actions have infringed an employee's individual rights, they're not overly concerned about that, provided that the evidence that they've found shows he's guilty.”

 

William Malcolm, a specialist in privacy and data protection at Pinsent Masons, said that employees can have a right in the UK to use employers' facilities for private communication, within reason. This is usually covered by an employer's usage policy which must be adhered to.

 

He said: “If your communications policy says you can use the system for reasonable personal use you do create an expectation of privacy. But if you suspect a crime or serious malpractice has gone on you should consider involving the police.”

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