E-mail and other electronic evidence have become the hallmarks of modern day white-collar investigations. When a criminal investigation extends into the workplace, the interplay between electronic evidence and an employee’s reasonable expectation of privacy with respect to that data takes center stage. In addition, corporate employers must contend with expansive requests from the government for electronically stored data. Two recent cases, one of which has been granted certiorari by the U.S. Supreme Court, signify a continuing effort by courts to more clearly define the parameters and constitutional limits around electronic evidence.
In the Workplace
The invocation of the Fourth Amendment in any context depends upon the legitimacy of an individual’s expectation of privacy. Courts consistently have recognized a distinction in the Fourth Amendment rights of public versus private employees. As we have noted in previous articles, however, clearly articulated rules of law sometimes become muddled when the Fourth Amendment is applied to digital data.1
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