Q: How do courts evaluate workplace computer, E-mail and Internet use policies?

A: To determine whether an employee has a reasonable expectation of privacy when using a computer at work, Courts ascertain whether the employer had asserted the right to monitor computer usage. Courts prefer explicit policies that employees must read and sign, consenting to the monitoring.

Generally, an effective policy clearly states that:

	Company computers are the exclusive property of the employer;
	The employer asserts the right to monitor and/or inspect an employee's E-mails, computer files and Internet activity;
	Employees do not have any expectation of privacy in their use of company computers;
	All computer use, Internet activity and E-mail is to be limited to company business purposes;
	Employees may not use company computers and E-mail systems for personal use;
	Employees may not send E-mail that may be perceived as discriminatory, offensive, hostile or unprofessional; and
	Employees may not access inappropriate Internet sites.

It is also a good idea to include the company's computer use and monitoring policies in a pop up window, requiring a user to consent to the terms before logging on. Putting an employee on notice of a company's computer use and monitoring policies minimizes any reasonable expectation of privacy in the use of company computers.

Employers should consult an attorney before implementing or revising computer, E-mail and Internet use and monitoring policies, because case law in this area is still evolving.

Thygeson v. U.S. Bancorp, 2004 WL 2066746 (D.Or. Sept. 15, 2004); see also TBG Insurance Services Corporation v. Superior Court, 96 Cal.App.4th 443, 117 Cal.Rptr.2d 155 (2002).

Mark Borzych
Staff Counsel

E-mail your computer forensics or electronic discovery question to: AskTheExpert@spinellicorp.com

Firewalls are a critical part of network security, and should be used to safeguard all computers that have Internet access. Firewalls protect computers and computer networks from unauthorized access and tampering by external users, and can filter out worms and other malicious code.

The terms "personal firewall" or "software firewall" refer to a program that protects a specific computer from unauthorized use and access. "Hardware firewalls" are stand-alone devices, sometimes built-in to other network equipment, that protect all the computers on an entire network.

Court Orders Confidential Electronic Data To Be Preserved and Segregated

A skin pathologist accepted a job with Ameripath, Inc. (Defendants). His previous employer, ProPath Services, L.L.P. (Plaintiff), applied for a preliminary injunction, claiming the doctor wrongfully acquired its confidential information, including a diagnostic manual, marketing strategies, client lists and patient information. The U.S. District Court for the Northern District of Texas noted that the doctor "accessed the client list shortly before tendering his resignation while he contemporaneously burned CDs and sent emails that may have contained Plaintiffs' confidential or proprietary information." Consequently, the Court acknowledged the possibility that Plaintiffs' confidential data may reside on the doctor's home computer, and prohibited Defendants from transferring, disseminating, forwarding or using any of Plaintiffs' confidential information, including documents or files the doctor transferred electronically to any location or computer outside of ProPath. Defendants were also ordered not to delete, destroy, or alter any document, E-mail or computer drive containing any ProPath information, and to segregate such data into a confidential file.

ProPath Services, L.L.P. v. Ameripath, Inc.,  2004 WL 2389214 (N.D. Tex. Oct. 21, 2004).

Ninth Circuit Clarifies Damage Provisions Under The Computer Fraud and Abuse Act

Creative Computing (Plaintiff) developed a successful Internet site, truckstop.com, to match revenue-producing loads with trucks. Getloaded.com LLC (Defendant) set up a competing load-matching site, then accessed Creative's Web site by registering a defunct trucking company and using the login name and password of a Getloaded subscriber. Once on the Web site, Getloaded executives examined source code for the rival company's "tremendously valuable radius-search feature," which allows a truck driver in one location to find all available loads within a designated radius in seconds. Plaintiff sued Defendant for damages under the federal Computer Fraud and Abuse Act (CFAA); the jury awarded Plaintiff $510,000 for the CFAA and state trade secret violations. On appeal, Defendant argued that the CFAA requires a $5,000 floor for damages for each unauthorized access, and that Creative Computing "submitted no evidence that would enable a jury to find that the floor was reached on any single unauthorized access." The Ninth Circuit concluded that the "$5,000 floor applies to how much damage or loss there is to the victim over a one-year period, not from a particular intrusion." The Court also upheld a permanent injunction that indefinitely prevents Getloaded from accessing truckstop.com.

Creative Computing v. Getloaded.com LLC,,  -- F.3d --, 2004 WL 2315059 (9th Cir. Oct. 15, 2004)

Employee's Invasion of Privacy Claim Dismissed in Workplace Computer Monitoring Case

U.S. Bancorp and others (Defendants) terminated Phil Thygeson (Plaintiff) for allegedly accessing inappropriate materials on his office computer. Plaintiff sued for invasion of privacy after learning that a company systems analyst searched the network hard drive for inappropriate material saved by Plaintiff, and copied Internet addresses Plaintiff accessed over a 12-day period. Plaintiff asserted that Defendants violated his privacy by remotely accessing the network to determine which Web sites he had visited, and by accessing files in a "personal" folder stored on U.S. Bancorp's computer network. Defendants sought summary judgment because Plaintiff had no reasonable expectation of privacy in his use of company computers. Noting that U.S. Bancorp's Employee Handbook explicitly stated that, "U.S. Bancorp's computers are not for personal use and employee activity can be monitored," the U.S. District Court for the District of Oregon dismissed Plaintiff's invasion of privacy claim.

Thygeson v. U.S. Bancorp,,  2004 WL 2066746 (D.Or. Sept. 15, 2004).

Computer Forensics Used To Solve Inventory Shrinkage Matter

A client engaged Spinelli Corporation to investigate potential employee theft after some of their products appeared on online auction sites. Our computer forensic investigators imaged and analyzed computers used by several suspected employees.

A keyword search for the seller's auction ID revealed that one of the computers contained cached Web pages for the auction listings of the company products - one of which included a name, E-mail address and other contact information. The E-mail address used on the auction site and the E-mail address of the employee who used that computer were the same.

The next step was to determine how much inventory had been lost. Fortunately, the suspect employee had created a password-protected Microsoft Excel spreadsheet that meticulously detailed auction listings under various auction user IDs, which Clint Modesitt accessed with special software designed to bypass passwords. A large number of the items listed in the spreadsheet were clearly company products. When confronted with the irrefutable evidence against him, the employee confessed and agreed to make restitution.

Computer Forensics Case Law Reviews Archived

Looking for a specific case summary, but can't remember when it was published in the Electronic Evidence Examiner? An archive of computer forensics and electronic discovery case law summaries from past issues is now available for your convenience.