Several recent arrests for possession and distribution of child pornography have involved use of workplace computers and servers to access and to store the materials. These arrests should serve as a reminder to employers of their legal duties if such material is uncovered in the workplace.
Unfortunately, discovery of adult materials on company computers is a relatively common occurrence. In the ordinary course of events, the employer takes disciplinary action against the employee involved, but does not notify law enforcement officials of the existence of these materials. The rules are different if the employer discovers any pornographic material that may involve persons under the age of 18. Under federal and some state laws, the employer has an affirmative legal obligation to notify law enforcement officials of the existence of the materials.
If the employer discovers any such materials in the course of reviewing its electronic communication systems, it should immediately take steps to preserve the materials in question. The employee’s computer should be removed and preserved. Any material located on the server should be locked from access by employees or others. The employer should call local law enforcement officials or the FBI to notify them of the discoveries, and should follow their guidance. Legal counsel should be immediately contacted to coordinate and to document the employer’s response to the discovery. The employee suspected of such possession should not be advised of the employer’s discovery before the above steps are taken.
Failure to take these steps, or to try and deal with this issue without involving law enforcement agencies could subject the employer and its managers to criminal sanctions.