by Li Jing, Esq., Genova, Burns & Vernoia, Newark
A New Jersey appeals court has held for the first time that an employee has no reasonable expectation that personal information stored on work computers is private—even if the employee has created a separate password to protect the information. Employers have the right to search work computers.
From temp to trusted insider
The defendant in State v. M.A. (402 N.J. Super. 353, App. Div., 2008) was identified by his initials M.A. to protect his privacy because he has AIDS. Certified Data Products (CDP) hired M.A. as a temporary bookkeeper. Joseph Braun, the company owner, was unaware that M.A. had served one year in prison for stealing $221,871 from a former employer and was on probation.
Braun told M.A. that all CDP computers were company property. M.A. soon became a trusted employee, becoming CDP’s permanent full-time bookkeeper with increased job duties that included invoicing, order entries and payroll and bank records.
Because M.A. was an expert in computers, Braun also gave him computer responsibilities and relied on him to handle information technology issues. M.A. upgraded the company’s computer system and established a computer network system.
He used a desktop computer in his private office at CDP that was never closed or locked, and shared a laptop computer that a CDP salesperson also used for sales demonstrations. Braun had access to both computers. The desktop computer was connected to CDP’s network system, and the laptop contained business software.
Unbeknownst to Braun, M.A. had set up a separate password on the two computers and stored personal information on them. Without Braun’s knowledge, M.A. contacted CDP’s payroll company and increased his salary from about $40,000 to $125,000 per year. When Braun found out, he terminated M.A.
Collecting criminal evidence
Believing M.A. might have stolen even more money from the company, Braun asked police investigators to search the two computers so he could trace CDP checks written by M.A.
Braun advised the investigators that CDP owned the computers and signed two forms giving consent for the New Jersey State Police to search the computers.
They found online transfers from CDP’s account to M.A. or M.A.’s mother. In all, it turned out that M.A. had stolen $665,935.
In the ensuing criminal proceeding, M.A. sought to suppress evidence obtained from the two computers, contending that Braun did not have authority to consent to their search because Braun did not own them. The court found that Braun did own the computers and properly consented to their search. M.A. was convicted and he appealed.
The Appellate Division agreed that M.A. did not have a reasonable expectation of privacy in the personal information he stored in the computers even though M.A. had a private office and placed confidential passwords on the computers to block third-party access to the information.
The court said that, to invoke Fourth Amendment protections against searches, a person must show that he or she had a reasonable or legitimate expectation of privacy. A person’s subjective expectation of privacy alone is insufficient. To be protected, a person’s expectation of privacy must be “one that society is prepared to recognize as reasonable.”
In this case, the Appellate Division announced that neither the law nor society recognizes as legitimate a defendant’s subjective expectation of privacy in a workplace computer he used to commit a crime.
Author: Li Jing is an associate at Genova, Burns & Vernoia, a New Jersey-based law firm with offices in Newark, Red Bank, Camden, New York and Philadelphia. He can be contacted at (973) 535-4431 or email@example.com.
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