A Guest Blog Post by Mike Dejopopompak, EnCE
Invasion of privacy has always been a concern, yet the interpretation of the Fourth Amendment and definitions of what constitutes a reasonable expectation of privacy at all are changing right alongside advances in technology and adoption of eDiscovery.
History of Privacy
As recently as 2007, the United States Court of Appeals for the Ninth District ruled that an employee had the right to privacy on his workplace computer. In this case, United States v. Ziegler, Ziegler’s employers discovered that he had been looking at child pornography websites from his work computer. The employer submitted the evidence to the FBI and charges were filed. Ziegler objected, stating that this action violated his Fourth Amendment rights; the appeal court found in favor of his objection, although they did leave open the caveat that the employer could consent to searches and seizures that would be illegal in other circumstances.
The attitude toward expectations of privacy on workplace computers has already shifted in the five years since that ruling. The majority of cases state that electronic communications like email and instant messaging do not fall under the protection of “reasonable expectation of privacy” in the workplace. Electronic evidence collected through eDiscovery is increasingly vital when it comes to building a case; can employees really continue crying Fourth Amendment rights when using workplace computers and programs?
In 2010, the Appeals Court of the Eleventh District ruled that a reasonable expectation of privacy is waived once an email has been copied to a third party (Rehberg v. Paulk) while the same year brought a ruling from the Appeals Court of the Sixth Circuit that a person does indeed have a reasonable expectation of privacy regarding emails, and that a warrant was necessary to collect emails for eDiscovery purposes (United States v. Warshak).
Privacy and Social Media
The advent of social media is changing the definition of “reasonable expectation of privacy” right and left. Crispin v. Christian Audigier, Inc. (2010) set the precedent that Facebook and MySpace messages are considered private, as well as wall posts when privacy settings are not set to public viewing, and as such are not subject to eDiscovery. However, more recent cases are coming down on the opposite side of the privacy argument, stating that when posting anything on a site that is intended specifically for sharing data with others, “privacy is no longer grounded in reasonable expectations, but rather in some theoretical protocol better known as wishful thinking.” (Romano v. Steelcase Inc., 2010)
Liberty vs Technology
Most recently, the Supreme Court made a unanimous decision in United States v. Jones that long-term GPS tracking placed on the car of a suspect was indeed a violation of the Fourth Amendment. Yet, the rise of social media and other technological changes designed to reduce privacy may only be in the eye of some beholders. As a society, the loss of privacy seems to becoming more and more accepted. Justice Alito summed up the debate on privacy vs eDiscovery neatly: “New technology may provide increased convenience or security at the expense of privacy, and many people may find the tradeoff worthwhile.”