Finding the Facts - Disciplinary and Harassment Investigation

Applying this reasoning to the issue of employer’s monitoring of employees’ computer usage and given the Court of Appeals decisions in U.S. v. Ziegler and Leventhal v. Knapek , 134 courts will likely uphold a public employer’s right to monitor or review an employee’s electronic mail correspondence, either prior or subsequent to initiation of an investigation, as long as the employer’s policies and procedures make it clear that the employer retains that right. ii. Employer Access to Employee Voice and Electronic Mail The Federal Electronic Communications Privacy Act of 1986 makes it a crime to intercept voice or email messages but contains an exception for “the person or entity providing the wire or electronic communication service.” Therefore, the law does not prevent an employer from accessing employee voice or electronic mail maintained on the employer system, but may prohibit the employer from intercepting those messages if the employer uses an outside service. 135

iii. Cases Regarding Email

Bohach v. City of Reno 136 Police officers claimed violations of the Fourth Amendment and wiretap statutes and sought to halt their Department’s investigation into their possible misuse of the computerized paging system. The court held that the police officers did not have a reasonable expectation of privacy in their use of the computerized paging system and that the Department could access their electronic messages. The court stated that all the messages were recorded and stored, not because anyone was “tapping” the system, but simply because that was an integral part of the technology which stored messages in the central computer. Further, the Department had notified all users that their messages would be “logged on the network” and that certain types of messages were banned from the system. United States v. Simons 137 Mark Simons was employed as an electrical engineer within the Foreign Bureau of Information Services (“FBIS”) which is a part of the CIA. Simons had access to both a computer system, owned and operated by the CIA, and to the Internet. The CIA had an employee who managed the computer network for FBIS and who monitored the Internet traffic. The CIA conducted a search of which web sites were being frequented from their computer network and determined that Mark Simons was frequenting pornographic sites and that he had downloaded 1,000 documents that were pornographic in nature. Mark Simons moved to suppress this evidence claiming that the CIA had conducted an illegal search in violation of his Fourth Amendment rights since the search was conducted without a warrant or other lawful justification. The court held that Simons did not have a reasonable expectation of privacy with regard to any Internet use since his employer had an official policy regarding such use which stated that official business use, incidental use, lawful use and contractor communications were permitted and that audits would be

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