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Gerald Biby v. Board of Regents of the University of Nebraska at Lincoln, et al.

Eighth Circuit Affirms Dismissal Of Invasion Of Privacy Claims Arising Out Of Search Of Employee's Office Computer

The Eighth Circuit, affirming the court below, dismisses invasion of privacy claims brought by an employee of a state university under the Fourth and Fourteenth Amendments arising out of the search of his office computer by University employees.  The University undertook the search in connection with a discovery request in a pending arbitration.  As a result of documents discovered in this search, the University terminated plaintiff.  The Eighth Circuit held that plaintiff's claims failed, both because plaintiff had no reasonable expectation of privacy in his computer in light of the University's computer policy, and because the search was reasonable given its scope and motivation.  The Court reached this result notwithstanding the fact that the University's policy provided that "a user can expect the files and data he … generates to be private information."  Plaintiff's claims were also dismissed because they were advanced against University employees who authorized the search, who, as public officials, possessed a qualified immunity from such claims which plaintiff was unable to overcome.  Plaintiff's claims against these individuals failed because of his inability to submit evidence sufficient to establish that a reasonable official would have believed the search at issue violated plaintiff's Fourth Amendment rights.

University Searches Plaintiff's Office Computer For Documents Responsive To A Discovery Request

Plaintiff Gerald Biby ("Biby") was employed by the University of Nebraska at Lincoln ("University") as a technology transfer coordinator.  Along with two other University employees, plaintiff invented a horticultural application for polylactic acid ("PLA"). 

Corn Card International ("Corn Card"), a private company, entered into a license agreement with the University to use a modified version of the PLA technology in its business.  A dispute subsequently arose between Corn Card and the University over Corn Card's rights to assign this license to a prospective business partner, which dispute ended up in arbitration. 

During the course of this arbitration, the University agreed to produce relevant documents to Corn Card.  Toward that end, the University contacted Biby, and requested access to both his paper files and office computer for the purpose of locating responsive materials.  Biby had, as part of his job, interfaced both with Corn Card and Gem Plus, the prospective business partner to which Corn Card wished to assign its license.

At the time of this request, the University had a computer policy which stated that "a user can expect the files and data he or she generates to be private information."  The policy went on to state that the University will only search files if a legitimate reason exists, such as in "response to a public records request, administrative or judicial order or request for discovery in the course of litigation." 

Biby kept his computer in his personal office.  Access was restricted to those who had the applicable password.  Biby had highly confidential and personal information on his computer, in addition to information relating to his employment.

When University employees first approached Biby, they informed him that, pursuant to University policy, they would not access his computer without his consent.  Such a restriction was not contained in the University's computer use policy.  When Biby initially refused to consent to access, the University employees left and did not conduct a search.  Subsequently, University employees returned and advised Biby that his consent was not necessary, and that they would search his computer whether he consented or not.  Biby then allowed the employees to proceed.

The employees conducted a search for documents relevant to the pending arbitration.  During the search, the University discovered documents that indicated both that Biby had overstated his ability to bind the University to agreements with Corn Card, and that evidenced direct contacts between Biby and Corn Card at a time when Biby had been prohibited from having such contacts by his superiors.  As a result, Biby was terminated, and this law suit followed.

Invasion of Privacy Claimed 

Biby asserted claims under 42 U.S.C. § 1983 for violation of the privacy guaranteed him by the Fourth and Fourteenth Amendments.  Biby sought redress from various University officials who had authorized the search, and sued them in their individual capacity.  These claims, as well as the balance of claims asserted by Biby in this litigation, were dismissed by the District Court on defendants' motion for summary judgment.  On appeal, the Eighth Circuit affirmed.

To be entitled to protection from an invasion of privacy under the Fourth and Fourteenth Amendments arising from a search conducted by his employer, an employee must first establish that he has a reasonable expectation of privacy in the placed searched. 

Expectations Of Privacy Yield To Reasonable Searches

Even if he has such a reasonable expectation, his privacy interests will yield to the reasonable needs of his employer for access to his information.  As explained by the Supreme Court in O-Connor v. Ortega, 480 U.S. 709, 725-26 (1987):

[P]ublic employer intrusions on the constitutionally protected privacy interests of government employees for noninvestigatory, work-related purposes, as well as for investigations of work-related misconduct, should be judged by the standard of reasonableness under all the circumstances.  Under this reasonableness standard, both the inception and the scope of the intrusion must be reasonable . . . .

To prevail on his claims against the public officials at issue here, plaintiff must show, in addition to an actionable invasion of his right of privacy, that the official should have known that the conduct at issue violated plainiff's Fourth Amendment rights.  Such a showing is necessary to overcome the qualified immunity the public officials have in the performance of their duties.  As explained by the Court:

To survive a summary judgment motion based on qualified immunity, a plaintiff must assert a violation of a constitutional right, show that this right is clearly established, and raise an issue of material fact as to whether the defendant would have known that the conduct in question violated the clearly established right.

No Reasonable Expectation Of Privacy

The Eighth Circuit held that plaintiff's claim failed for numerous reasons.  First, the Court held that "Biby has not shown that he had a reasonable expectation of privacy in his computer files."  In reaching this result, the Court relied on the University's Computer Policy, which apprised Biby that his files were subject to search in connection with litigation discovery requests.  And even if he had such an expectation, held the Court, the search in question was reasonable in scope and inception, because it sought materials to respond to discovery requests in the arbitration, and hence was permitted under the Supreme Court's holding in O'Connor regardless of Biby's expectations of privacy. 

Public Officials Have Qualified Immunity

Finally, held the Court, the individual defendants were in any event entitled to immunity from plaintiff's claim because Biby "ha[d] not demonstrated . . . that a reasonable official would have known that the inception or scope of the search would violate Biby's Fourth Amendment rights."  The Eighth Circuit accordingly affirmed the District Court's dismissal of plaintiff's 42 U.S.C. § 1983 claims arising out of the University's search of Plaintiff's computer.

In a concurring opinion, Circuit Judge Bye voted to dismiss plaintiff's invasion of privacy claim "because the University's need to gather information relevant to a pending arbitration outweighed Biby's privacy interests … and [thus was] not in violation of the Fourth Amendment."  But, Judge Bye noted, Biby had a reasonable and thus protectable expectation of privacy in his computer, particularly in light of the University computer policy's promises in this regard, and the University's initial statements that it would not conduct a search without Biby's consent.