What happens when a company’s IT department discovers porn on an employee’s computer while performing maintenance? The answer is that it depends.
If the porn involves children, the employer may have a legal duty to report the conduct to the appropriate authorities. A recent revision to federal law requires that any provider of an “electronic communications service” – a term that includes email – must report information about an employee who is discovered to have possession of child pornography to the National Center for Missing and Exploited Children. The employer must provide the Center with the employee’s identity, email and/or IP address, and other identifying information. The employer can be penalized for a failure to report such information where it is required to do so. Some states have passed similar laws.
In addition to the criminal penalties for a failure to report child pornography, some states have begun recognizing civil causes of action by victims against employers who have failed to make the required report or take other affirmative action, resulting in the perpetrator being allowed to continue exploiting his/her victims.
What happens if the porn involves apparently consenting adults?
If the computer belongs to the employer, then the question may be one for resolution based on what the company’s employment handbook says about personal use of company computers. (This is a subject that employers should discuss with counsel.)
If the computer belongs to the employee and the employee is authorized to use his or her own computer for work (hence the use of the company’s IT department to perform maintenance on the employee’s personal computer), then in most situations personal material on the employee’s own computer that doesn’t appear to provide evidence of criminal activity is not the company’s concern.
Employers should consult counsel familiar with the laws of the states in which the employers operate to obtain state-specific guidance.
The analysis set forth in this article is provided for general understanding only and should not be considered legal advice. Counsel should always be consulted for advice regarding a specific situation.