New Jersey Appellate Division Rejects Employee’s Computer Privacy Claim in Criminal Case

Recently, in State of New Jersey v. M.A., the New Jersey Appellate Division held that an employee did not have any expectation of privacy in the contents of his work computer. In M.A., the employee was terminated and the employer reported to the police that the employee had engaged in theft of company funds. The police conducted a warrantless search of two computers in the employer’s possession. One of the computers was maintained in the former employee’s office and the other was a laptop shared by the former employee and a co-worker. The former employee had created confidential passwords on both computers to block access to his personal information. At the employee’s criminal trial, the employee claimed that the search of his computers constituted an unlawful search.

The court, relying on several facts, rejected the employee’s argument. The key facts included: both computers searched were owned by the employer and maintained in the employer’s place of business; all employees had been advised upon hiring that all workplace computers were property of the employer; the desktop computer that was searched was connected to the employer’s network, giving the employer equal access to it; the laptop searched contained the employer’s business software and was shared by another employee; and lastly, the employee’s office was never locked.

Although a criminal case, this case highlights the importance of employers implementing and distributing a clear and unambiguous written policy informing employees that their work computers are the employer’s property and no employee should have any expectation of privacy in any materials contained therein. Employers should also be cautious about giving employees exclusive access to any computer.