United States: Employers Beware: Judge Greenlights Employee's Privacy Lawsuit Over Dropbox Access

Many employers maintain policies limiting their employees' expectation of privacy in the workplace, including policies that eliminate any expectation of privacy when using company-issued electronic devices. While employers may think that having such a policy would protect them from invasion of privacy claims under the Fourth Amendment or state law, a recent federal court decision may cause employers to think otherwise. This post examines this decision and provides best practices for avoiding issues with employees' privacy interests.

On March 19, 2019, Judge Kim R. Gibson from the Western District of Pennsylvania partially denied a public employer's motion to dismiss, permitting the Plaintiff Elizabeth Frankhouser's claim for Fourth Amendment violations, as well as her state law claim for invasion of privacy, among others, to move forward.

The Facts

Plaintiff was the Executive Director of Defendant Clearfield County Career and Technology Center ("CCCTC"), an educational facility and, importantly for purposes of this case, a public employer. Plaintiff's position required extensive work on her work computer and Defendant Franklin Walk, CCCTC's Internet Technology Administrator, was responsible for resolving any work-related computer problems, including reloading and re-synching applications on the computer, such as Dropbox.

For those readers unfamiliar with the application, Dropbox is an application that enables users to store files on the "cloud" and access those files using a login on any internet-connected device. Importantly, synching a Dropbox account with a device does not save files on the hard drive of that device, rather it provides an access point for files stored remotely in the Dropbox cloud.

Although Plaintiff's Dropbox account was private, CCCTC authorized its use for work-related matters and thus the account contained both personal and work related folders, including personal photographs. Among the personal photographs were two photographs of Plaintiff's boyfriend that "could be considered borderline explicit," as well as photographs of Plaintiff at parties.

Plaintiff's Dropbox account was accessible only with her username and password, which were listed on an excel spreadsheet that she used to store various personal and work-related usernames and passwords. Mr. Walk knew of the spreadsheet and used Plaintiff's Dropbox username and password to access her Dropbox account. Mr. Walk then took some of the personal photographs from the account and gave them to Defendant Doug McClelland, CCCTC's Truck Driver Recruiter, who delivered them to Mr. Paladina, CCCTC's Superintendent of Record and Mr. Jefferies, a member of CCCTC's School Board, Joint Operating Committee President and Plaintiff's supervisor.

In August 2017, Mr. Paladina and CCCTC's Superintendent, Michelle Dutrow, accused Plaintiff of storing naked photographs and other inappropriate pictures on her CCCTC-issued computer and cellphone in violation of company policy. Later that month, Mr. Paladina informed Plaintiff that she would be forced to resign.

Not surprisingly, given the circumstances surrounding her termination, Ms. Frankhouser filed a lawsuit alleging Fourth Amendment violations and invasion of privacy claims along with additional federal and state law claims.

The Court's Holding

The Fourth Amendment prohibits unreasonable searches and seizures in situations in which a person has a constitutionally protected reasonable expectation of privacy. To make this determination, a court must consider whether an individual has demonstrated a subjective expectation of privacy in the challenged search. Although often associated with criminal cases, the Fourth Amendment's protections apply when the government acts in its capacity as an employer. Specifically, in the workplace context it has been held that public employees are entitled to a reasonable expectation of privacy in their place of work.

As to her Fourth Amendment claim, Ms. Frankhouser argued that she had a reasonable expectation of privacy in her Dropbox account because she did not view or store the relevant photographs on her CCCTC-issued computer (they were in the "cloud").

Defendants moved to dismiss asserting that: (1) Plaintiff did not have an expectation of privacy in information stored in her Dropbox because she accessed the account frequently at work; and (2) she violated company policy by keeping the photographs in her account. In support of their argument CCCTC referenced their Board Policy Manual which stated in part that "Users [of CCCTC's computer resources] shall have no expectation of privacy in anything they create, store, send, delete, receive, or display on or over the Career Center's Internet, computers or network resources...". While Judge Gibson refused to consider the Board Policy Manual at the motion to dismiss stage, she stated that it would not have changed her ruling even if she did. Judge Gibson reasoned that Plaintiff's allegations do not fall clearly within the boundaries of the policy since she alleges she never housed her personal files on CCCTC's computers or servers, nor did she access any of her personal files through CCCTC's computers or servers.

Ultimately, the Court determined that Ms. Frankhouser did in fact have a reasonable expectation of privacy with respect to her personal Dropbox material for the following reasons: (1) it was her own private account, (2) it was password-protected, and (3) Plaintiff never accessed or downloaded the photographs while on CCCTC's system. As such the Court declined to dismiss the Fourth Amendment and invasion of privacy claims.

Notably, the crucial allegation here appears to be that Ms. Frankhouser did not store or view the personal photographs from her Dropbox account on her work computer. Rather, while at work and on her employer's system, she used the account solely for business related purposes.

While this case is in the early stages of litigation and the Defendants could ultimately prevail in the end, this decision certainly raises considerations for employers to face.

Takeaways for Employers

  • Revisit Workplace Privacy Policies and Practices. As stated at the beginning of this post, it is fairly common place for employers to maintain a policy regarding employees' expectations (or lack thereof) of privacy in the workplace. This policy should include a notice to employees of the employer's right to monitor employees' emails and activities while using their employer's systems. However, such a policy is not failsafe, and caution should be taken in accessing and searching an employee's private or personal accounts. For example, only authorized manager-level employees with a legitimate business need should be able to do so.
  • Prohibit Use of Certain Applications. As this decision illustrates, employers should consider prohibiting employees from using applications such as Dropbox for both personal and business related purposes and/or limiting employees use of these applications on their work computers altogether. In particular, cloud-based applications can cause headaches for employers, particularly where there is a mix of private and business material stored in the cloud.
  • Public Employers Take Extra Caution. Public employers should take additional precautions, keeping in mind that their employees have a greater expectation of privacy in the workplace than their private employee counterparts.

As always, it is a good idea to have counsel review any company policy regarding employees' expectations of privacy, and employers should consider consulting counsel if questions arise regarding the legality of a search of employee documents or property.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions