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Employee Had No Privacy Expectation In Work Emails

In a decision last week, the Third Circuit Court of Appeals held that a Penn State University employee did not have a reasonable expectation of privacy in her work emails because the University owned and operated the email account at issue.

In 2015, the Pennsylvania Office of the Attorney General (OAG) filed criminal charges — including counts of forgery and computer-related offenses — against a Penn State employee.  The prosecutor and OAG investigator assigned to the criminal case requested that University provide emails from the employee’s work email account.  Penn State officials were cooperative, though they requested a subpoena before providing the emails.

The prosecutor and investigator obliged.  The subpoena requested production of “any & all emails/computer files/documents/attachments to or from [the employee] at her email address, to or from the following email addresses: . . . .”  The subpoena did not include the date, time, and place for production, or the party sending the subpoena.  Penn State provided the requested emails and the charges against the employee were subsequently dropped.

The employee filed suit under 42 U.S.C. § 1983, claiming that the state “violated her Fourth Amendment right to be free from an unreasonable search” when the state employees used an allegedly invalid subpoena to induce Penn State to produce the emails.  The defendants moved to dismiss the complaint based on qualified immunity.  Qualified immunity insulates government officials from civil damages liability unless the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct.”  The District Court dismissed the plaintiff’s claim, reasoning that she “did not have a clearly established right to privacy in the content of her work emails.”

On appeal, the Third Circuit Court of Appeals considered, in part, whether “the Fourth Amendment affords an employee . . . the right to have the contents of her work emails remain free from a law enforcement search, absent a warrant or valid exception to the warrant requirement.”  Walker v. Coffey, et al., No. 17-2172 (3d Cir. Sept. 20, 2018).  The was no dispute that the employee subjectively expected privacy in her work emails.  The key inquiry, therefore, was whether the employee had “an objectively reasonable expectation of privacy in the content of her work emails.”

In affirming the lower court, the Third Circuit explained, “employers, as third parties who possess common authority over the workplace, may independently consent to a search of an employee’s workplace documents or communications.”  The Court continued:  “There is no dispute that the emails in question were sent or received via [the employee’s] work email address, as part of an email system controlled and operated by Penn State.  Thus, for purposes of the Fourth Amendment, the emails were subject to the common authority of [Penn State].”

 

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