Musings from Brian J. Noggle: 9th District Court of Appeals Defends Property Rights

9th District Court of Appeals Defends Property Rights

Federal appeals court rules against workplace PC privacy:

If you think the Web sites you access on your workplace computer are nobody else's business, think again.

That was the message today from the Ninth U.S. Circuit Court of Appeals in San Francisco, which upheld a Montana man's conviction for receiving obscene material that his employer found on his computer during a late-night raid.

"Social norms suggest that employees are not entitled to privacy in the use of workplace computers, which belong to their employers and pose significant dangers in terms of diminished productivity and even employer liability," said Judge Diarmuid O'Scannlain in the 3-0 ruling.

He said other courts have consistently ruled that employers are entitled to monitor their workers' use of computers as long as they had disclosed that policy to their workforce.

Unlike some respected legal minds, I don't think this is a defeat for privacy rights; instead, it's a victory for property rights. Because even though some people would phrase it this way:

If you think the Web sites you access on your workplace computer are nobody else's business, think again.

Because let's not forget, it's not your computer, it's your employer's. It's not your Internet connection at work, it's your employers. And anyone who would give you rights over that property which you don't own takes rights away from the actual owner.

Apparently, this runs counter to established case law regarding searches and seizures and where arbitrary edges of the invented right to privacy lies. Friends, this strikes me, like much law does, as to arguing what sort of pin angels can dance upon. From the distant, forest sort of view, it doesn't matter whether the gumdrop trees are green or blue because it's still a candy forest in a child's imagination. But I haven't finished law school.

I suspect that throwing computers into the story has triggered automatic responses from the digitally-inclined libertarians amongst us. After all, information wants to be free, unless it wants to hide in the shadows of privacy's billowing petticoats. Because it's computers, it's different and twenty-first century.

But it looks to me, simply, that once you've established that the employee has certain rights to use the employer's facilities and materiel as the employee wants, we cannot stop easily at the compter namespace. No, the employee then should have certain privacy rights to be free from monitoring, from both the employer and the government, in other facilities or with other employer-provided mechanisms for communicating and productivity.

Conference rooms become cones of silence, in which you can conduct personal business without fear of eviction for actual meetings. Why not plan your family reunion? Letterhead and printed envelopes become diplomatic pouches, wherein you should expect everything you write, type, or print upon them to be private, for the addressee only. Don't forget the 900 numbers on your phone system. The Man blocking them surely infringes upon your privacy and its emanated right to a psychic reading.

No, the 9th District here accidentally protected the rights of property holders from those who would virtually squat upon those items. Regardless of search, seizure, or illegal activity, the computers belong to the employers, and the employees have no right to their network connections, memory, or hard disk space for personal use.

- posted by Brian J. @ 6:07 PM