Six Articles on Electronic - Craig Ball

Craig Ball © 2007
The problem with the court’s distinction is that employers enjoy no privilege to confiscate and
convert personal property. Just because you have your spouse’s photo on your desk at work
doesn’t mean the boss can keep it when you’re fired. Instead, the employer’s right to retain the
information on the computer must be grounded on a presumption that information stored on an
employer’s computer is either company property in the first instance or acquires that character
by virtue of being the fruit of an employee’s labors.
The commingling of personal and business property on company computers is a growing
concern. From personal e-mail to screenplays written on the lunch hour, employers should
anticipate the obligation to identify, segregate and return personal data “belonging” to fired
employees. Likewise, employees need to tailor their personal use of company systems to the
possibility of lock out.
This is going to be harder than it sounds because employers aren’t disposed to grant “computer
visitation rights” after a firing to let former employees—particularly ones now working for the
competition—clean out their digital lockers. But without such access, how well could any of us
identify from memory all personal items on our office computers, and what fired employee wants
a former boss or co-worker sifting through their personal information?
A well-drafted acceptable use policy signed by the employee helps by defining rights and
responsibilities in the use of business computer systems during employment. However, if
employers are lax in their enforcement of the policy such that employees harbor a reasonable
expectation of privacy in their use of company systems, terminations may entail the added
ugliness of a custody battle over data and potential liability for conversion. Even where a
violation of an AUP is clear, will courts decide that personal data escheats to a former employer
simply because it’s found on their virtual premises? That is, which schoolyard canon will prevail:
the altruistic “If it’s not yours, give it back,” or the Draconian “You shouldn’t have brought it here,
so now it’s mine?”
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