Possession of pornography is not a crime, but possession of child pornography is. Employers may be held liable for possession of child pornography discovered on company-owned workplace computers, and, in some states, for not reporting to proper law enforcement agencies that employees are engaging in activity related to child pornography.
Employers who “knowingly possess” images of child pornography on their computers can be held liable under federal law. The law provides a defense if the employer takes reasonable steps to destroy the visual depiction or reports the matter to the proper law enforcement agency.
States like Illinois, Wisconsin and Indiana also make possession of child pornography a crime, including images stored on a computer. It is a defense that the material was not knowingly possessed, but that defense begins to evaporate once the material is discovered. Arkansas, Michigan, Missouri, Oklahoma, South Carolina, and South Dakota go a step farther. They require computer technicians to report child pornography detected on workplace computers to law enforcement offi cials or risk facing individual criminal charges. These states do not require employers to search for such material, but do require reporting if computer technicians discover the images in the scope of their professional capacity.
There can be a right of privacy in equipment (such as laptop or desktop computers) furnished to an employee for his use in the workplace. However, if an employer puts employees on notice that it may inspect or monitor such equipment, no reasonable expectation of privacy in the use of such equipment can exist. Muick v. Glenayre Electronics, 280 F.3d 741 (7th Cir. 2002).
Employers should be familiar with the requirements of applicable child pornography laws and act promptly to remove (and, where required, report) any images of child pornography found on workplace computers. To protect against possible invasion of privacy claims, employers should also have a policy in place informing employees that the company has the right to monitor at any time the use of electronic communication equipment and systems, including the printing and reading of all e-mail. If you have any questions about the subjects discussed in this article, please contact Megan Crowhurst (312-609-7622) or any other Vedder Price attorney with whom you have worked.