A Washington state Court of Appeals has ruled this week that police do not need a warrant to access and search the contents of an employee’s office-owned PC. All that is needed is the employer’s permission. This in the case of an employee who used his work PC to access child pornography.
Now, on first blush this may seem like a no-brainer. Warrantless searches happen, and are upheld, all the time, if the owner gives permission. Indeed, one of the first things which one learns in evidence in law school is the “plain view” doctrine, which holds that if the police knock on your door, and you let them in, anything which they observe which is in plain view is fair game despite the lack of a warrant, and even if you didn’t give them explicit permission to observe that thing (we’ll leave for the non the question of what constitutes permission, and when coercion negates alleged “permisson”).
Next in line is the permitted search, where something which is not in plain view can still be discovered and considered admissible evidence without a warrant if the owner has given permission for the search.
It seems natural to extend this to the ‘premises’ of the contents of a PC if it is the owner giving permission for the search of the PC’s contents. And on its face it seems obvious that if the PC belongs to the business, then the business owner has the authority to give permission for that search.
But let’s think about this for a minute. Think about some of the potential ramifications for this line of reasoning.
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Because we live in an era of increasing workplace mobility.
How many people do you know who carry a work laptop between office and home, and telecommute or otherwise work from home using that work laptop? Aunty is sure that you have to use at least two hands to count them.
Now, how many of them do you think have never ever used that laptop for something personal? Not a smidgeon of email, not a single instant message, not a solitary web search.
Can you count them on more than one finger?
When you take your work laptop home, when you use the same machine for drafting documents or writing code at the office as you do for checking work email from Starbucks and answering that work email late at night from home, the distinction between work and personal computer becomes blurred. Really, who is going to switch from the office laptop to their home PC to do a quick Google search, check news, or answer an instant message from their spouse?
However, while the distinction becomes blurred in the mind of the average employee, and indeed probably in that of the employer, it is clearly now not at all blurred in the mind of the Court. Indeed, there seems to be a very bright line.
The moral here then is that you should only do work-related things on your work computer. Leave all personal, and Aunty does mean all personal computing for your own personal computer.
Or, and this is much easier, don’t be so stupid as to do something illegal while using your work computer. And if you do, don’t expect your employer to protect you.
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