Recent Cases Emphasize the Need for Technology Use Policies

Originally published in April 2002

On February 21, 2002, the Fifth Circuit handed down its decision in United States v. Slanina, ___F.3d___, 2002 WL 247141 (5th Cir. (Tex.)) (No. 00-20926). Slanina was a city fire marshall. His supervisors confiscated his office computer after they accidentally discovered e-pornography on that computer during a network installation. Slanina was convicted in a criminal prosecution arising out of those materials. One of Slanina's contentions in appealing his conviction was that he had a reasonable expectation of privacy in the materials stored on his city-owned office computer. Significantly, the city had never disseminated a policy that prevented storage of personal information on city computers or informed city employees that their Internet usage could be monitored. Accordingly, the court held that Slanina's expectation of privacy regarding his computer usage was reasonable.

The day after the Fifth Circuit decided the Slanina case, the U.S. Court of Appeals for the Tenth Circuit handed down its opinion in United States v. Angevine, 281 F. 3d 1130 (10th Cir. (Okla.) February 22, 2002). Angevine was a university professor who had used his office computer to download e-pornography. Like the Fifth Circuit in Slanina, the Tenth Circuit addressed the issue of whether Angevine had a reasonable expectation of privacy in the materials stored on his office computer. In sharp contrast to the facts in Slanina, the university in Angevine did have a written policy explaining appropriate computer use and describing to employees how officials could administer and monitor the university computer network. Accordingly, the court held that Angevine did not have an objectively reasonable expectation of privacy in the materials stored on his computer.

The contrasting rulings in the Slanina and Angevine cases highlight the need for employers to adopt, maintain and disseminate written policies clarifying the employer's position on the personal use of employer-owned technology resources and stating what rights the employer reserves to monitor that use. Once adopted, adherence to the employer's policy should be a condition of employment. It is a good idea to have each employee acknowledge receipt of the policy in writing and to provide a copy to each employee or include the policy in the employee handbook. Moreover, it is worthwhile to have splash screens appear reminding employees of the policy each time a computer in the employer's system is re-booted.

A technology use policy should be tailored to each employer's particular business needs. However, a company's policy should at least address the following matters:

• Scope of Permitted Use
- The policy should notify employees that the employer's computer systems and other technology resources are to be used solely (or primarily) for business use. If applicable, the policy should provide that all means of electronic communication (including faxes and voice mail in addition to email) are covered by the policy. Further, the employer should reserve the right to monitor its system for any reason and to review and disclose all matters communicated to and from users on the system.
• No Use for Improper Purposes
- The policy should prohibit use of the employer's computer systems for improper purposes such as sending messages or viewing material involving derogatory, defamatory, harassing, obscene, illegal, or otherwise inappropriate subjects. Additionally, the policy should warn users that deleting material from an individual computer will not eliminate that material from the system.
• Disciplinary Action
- The policy should provide that violations will result in disciplinary action, which may include discharge from employment. An employer who discovers inappropriate use should be prepared to follow up in accordance with the policy.

Employers who presently do not have a technology use policy or whose businesses have special considerations (for example, businesses that routinely maintain confidential client communications) should consult with their attorneys to assist in drafting policies that meet their specific needs. Employers who already have a policy should consult with their attorneys to ensure that they meet the standards set out in Slanina and Angevine.