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Designer Skin LLC v. S & L Vitamins, Inc., et al.
Unauthorized internet reseller of plaintiff’s products is not guilty of trademark infringement, and does not cause actionable initial interest confusion, by using plaintiff’s trademarks in meta tags of website at which plaintiff’s and its competitors’ products are sold, and in...

Carlus Haynes v. Office of the Attorney General Phill Kline, et al.

Case No. 03-4209-RDR (D. Kan., December 23, 2003)

Employee May Have Reasonable Expectation Of Privacy In Emails Stored In Private File On Company Computer

Court grants plaintiff, a former assistant attorney general, a preliminary injunction:  (i) enjoining his former employer, the Kansas Attorney General, from further review and/or dissemination of e-mails contained in 'private' computer files maintained by plaintiff on his employer's computer system, and (ii) directing his former employer to permit plaintiff to access and copy materials contained in these files.  In reaching this result, the Court found that plaintiff had raised serious questions as to whether defendants' review of the e-mails at issue violated his 4th Amendment expectations of privacy in these materials sufficient to warrant the issuance of injunctive relief.  The Court granted such relief notwithstanding the fact that the Attorney General's computer use policy provided, in part, that "There shall be no expectation of privacy in using this [computer] system….".

Plaintiff was employed by the Kansas Attorney General as a "tobacco enforcement attorney."  During his orientation, he was told that "his computer had two files:  private and public" and that "he could put personal information in the private file and that no one would have access to it."

Computer Use Policy Disclaims Expectation Of Privacy

The Kansas Attorney General had a computer use policy that was displayed on employees' computers (including plaintiff's) each time they were turned on.  This policy provided, in part:

Office computer use shall be in compliance with computer use procedures.  Obtain full procedures from your deputy or supervisor.

Computer use for non-official business is authorized only if kept to minimum duration & frequency & if it does not interfere with state business.  This system shall not be used unlawfully nor for any purpose which could embarrass the user, recipient or Attorney General.

There shall be no expectation of privacy in using this system; however, intentional access to another user's e-mail without permission shall be prohibited, except as authorized by computer use procedures.

Despite deletion, files may remain available in storage.  Personal data on the system may be subject to removal.  Data may be subject to state public records and records preservation laws.

Plaintiff never received any additional computer use policy or procedures from his employer.

Plaintiff was given notice by his employer that he would be terminated in two weeks.  During this two week period, he was prevented from copying the computer files contained in his "private" files. 

After his discharge, employees of the Kansas Attorney General reviewed information contained on plaintiff's computer, including personal e-mails apparently maintained in plaintiff's "private" files.  Defendants did not state why they removed these materials, but intimated they might be relevant if plaintiff filed a lawsuit concerning his termination.

Claiming defendants' actions violated his rights under the Fourth and Fourteenth Amendments, as well as his rights under 18 U.S.C. §2511, plaintiff commenced this suit.  Plaintiff sought a preliminary injunction enjoining defendants, inter alia, from further review or dissemination of materials contained in plaintiff's private files and directing defendants to give plaintiff access to, and permit him to copy, these materials.

Potential Violation Of Fourth Amendment Rights Because Employer Gave Employees Instructions As To How To Create Private Files On Company Computers

The Court found that plaintiff was entitled to such injunctive relief.  The Court held that plaintiff had raised sufficiently serious questions as to whether defendants' conduct had violated plaintiff's 4th Amendment rights to be entitled to the requested relief. 

To prevail on such a 4th Amendment claim, a public employee "must prove 'a legitimate expectation of privacy' in the place searched or the item seized."  This in turn requires the employee to demonstrate both that he had a "subjective expectation of privacy in the areas searched" and that that expectation is one "society is prepared to recognize as reasonable."

Notwithstanding the fact that the Attorney General's computer use policy provided that "there shall be no expectation of privacy in using this system…" the Court held plaintiff had raised serious questions as to whether he had a reasonable expectation of privacy in his "private" computer files.  In reaching this result, the Court relied on the facts that:

Employees are allowed to use their work computer for private communications; employees are told how to create "public" and "private" files; employees are advised that "intentional access to another user's e-mail without permission" is prohibited; employees are given passwords to prevent others from gaining access to their computers; and there was no evidence that any Attorney General official had ever monitored or viewed any private files, documents or e-mails of any employee. 

The Court further determined that plaintiff had made a showing of irreparable harm sufficient to be entitled to injunctive relief, given the sensitive and personal nature of the materials in question, and that the balance of the equities tipped in his favor, especially in light of the Attorney General's failure to establish why it reviewed and/or needed the materials in question.  The Court accordingly issued a preliminary injunction as stated above.

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