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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...

United States of America v. Eric Neil Angevine

281 F.3d 1130 (10th Cir., February 22, 2002), cert. denied, 537 U.S. 845 (2002)

10th Circuit holds that a University professor has no reasonable expectation of privacy in an office computer supplied for his use by the University which employed him.  This result was mandated by the University's computer policy, which provides both that the University may inspect such computers at any time to ensure their appropriate use, and that the University is the owner of everything stored in such computers.  As a result, the court held that the seizure of these images did not violate defendant's Fourth Amendment rights, given his lack of a reasonable expectation of privacy in this computer.  The 10th Circuit accordingly affirmed the denial of defendant's motion to suppress the introduction of child pornography found in files defendant attempted to delete from his computer hard drive and upheld defendant's agreement to plead guilty to violating 18 U.S.C. §2252(a)(5)(b) based on his possession of child pornography.

Defendant was a Professor who taught architecture at Oklahoma State University.  The University provided defendant with an office computer, which he "used … to download over 3000 pornographic images of young boys."  After viewing the images, defendant attempted to delete them from this computer. 

Oklahoma State had a computer use policy pursuant to which "the University reserves the right to view … any file … stored in [office] computer[s] or passing through the network and will do so periodically … to audit the use of University resources."  The policy also provided that the University maintained ownership of both any office computer as well as anything stored thereon.  Lastly, the use policy warned employees that:

under Oklahoma law, all electronic mail messages are presumed to be public records and contain no right of privacy or confidentiality except where Oklahoma or Federal statutes expressly provide for such status.  The University reserved the right to inspect electronic mail usage by any person at any time without prior notice as deemed necessary to protect business-related concerns of the University to the full extent not expressly prohibited by applicable statutes."

Defendant sought to prevent the use of these pornographic images in his subsequent prosecution on 4th Amendment grounds.  The district court denied defendant's motion to suppress, holding that defendant did not have a reasonable expectation of privacy in his office computer.  The defendant thereafter conditionally pled guilty to possession of child pornography in violation of 18 U.S.C. 2252 (a)(5)(B).  In his plea, defendant preserved his right to appeal from the lower court's denial of his motion to suppress.

On appeal, the Tenth Circuit affirmed the denial of defendant's motion to suppress.  The Fourth Amendment guarantees the right of people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures.  To establish a violation of the Fourth Amendment, however, a defendant must prove that he has "a legitimate expectation of privacy" in the place searched.  This, in turn, requires defendant to show both that he has "a subjective expectation of privacy in the area searched" and that "that expectation must be one that society is prepared to recognize."  In analyzing whether a defendant employee has reasonable expectation of privacy in spaces or equipment supplied by his employer, courts will examine "(1) the employee's relationship to the item seized; (2) whether the item was in the immediate control of the employee when it was seized; and (3) whether the employee took actions to maintain his privacy in the item." 

The Court held that Oklahoma State University's computer policy prevented defendant from having a reasonable expectation of privacy in his office computer.  Said the Court:

Oklahoma State University policies and procedures prevent its employees from reasonably expecting privacy in data downloaded from the internet onto university computers.  The University computer-use policy reserved the right to randomly audit Internet use and to monitor specific individuals suspected of misusing University computers.  The policy explicitly cautions computer users that information flowing through the University network is not confidential either in transit or in storage on a University computer.

This result was supported by the fact that Oklahoma State, in its computer policy, reserved to itself ownership of defendant's computer and the data stored on it, the fact that defendant did not have access to the materials in question, because he attempted to delete them, and because defendant had not taken sufficient steps to protect his privacy in the seized items.  Importantly, the Court held that "given his transmission of the pornographic data through a monitored University network, deleting the files alone was not sufficient to establish a reasonable expectation of privacy."  The Tenth Circuit accordingly affirmed the denial of defendant's motion to suppress, and upheld his plea agreement.

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