But the 9th U.S Circuit Court of Appeals also said in an opinion published Wednesday that the employee’s 4th Amendment right wasn’t violated when a warrantless search turned up a history of child porn visits on the company PC.
Employee Brian Ziegler, who worked for third-party online processor Frontline Processing, had appealed to the higher court after he failed to win a motion to suppress evidence from the U.S. District Court over his 2001 arrest by the FBI.
(A Frontline executive told XBIZ that the Montana-based company does not process online adult accounts.)
Ziegler came to the agency’s attention when the owner of Frontline’s ISP notified the FBI that a Frontline employee had visited child porn websites from a workplace computer, court documents said.
Ziegler, who was the company’s director of operations, pled not guilty and moved to suppress the images retrieved from the search of his workplace computer after being indicted on charges of receiving and possessing child porn in May 2003.
In court documents, Frontline employees said they obtained a key to Ziegler’s private office from a Frontline executive and opened the computer, making two copies of the hard drive.
Later, the employees voluntarily turned over the content to the FBI, explaining that all of the company-owned PCs in the office were routinely monitored.
The FBI explained in a court filing that because the company voluntarily turned over the PC, which had numerous cache images of child porn, it had no need to ask for a search warrant.
On rehearing, the 9th Circuit said that the federal judge was correct in denying the motion to suppress evidence, but the three-judge panel arrived at the conclusion on different grounds from U.S. District Court.
The circuit judges said that Ziegler did have a reasonable expectation of privacy in his office and workplace computer, but the search of his workplace computer was excepted from the constitutional warrant requirement because it was authorized by an officer of the company.
Judge Diarmuid F. O’Scannlain, who wrote for the panel, explained in the ruling that warrantless searches are valid where the government obtains voluntary consent either from the criminal suspect or from a third party with “common authority” over the premises or items the government seeks to inspect.
O’Scannlain also said that Frontline exercised common authority over Ziegler’s computer because it had complete administrative access to all of its employees’ computers and, with employees’ knowledge, had installed a firewall to monitor their Internet traffic.
“Although Ziegler retained a legitimate expectation of privacy in his workplace office, Frontline retained the ability to consent to a search of Ziegler’s office and his business computer. And because valid third-party consent to search the office and computer located therein was given by his employer, the district court’s order denying suppression of the evidence of child pornography existing on Ziegler’s computer is affirmed.”
The case is U.S. vs. Ziegler, 05-30177.