Digital Evidence of Pornography in Hostile Workplace Lawsuits

Internet Files Can Corroborate Sexual Harassment Claims

A new privacy feature in Microsoft’s Internet Explorer 8 may foster more viewing of pornography in the workplace.  It should heighten the incentive for employers to actively block Web porn sites.

Internet Explorer is the most popular web browser.  Forthcoming version 8 includes a so-called InPrivate mode, where browsing history is not retained and temporary Internet files are deleted upon completion of the browser session.  With the advent of InPrivate mode, some employees may be lulled into a false sense of seclusion at their desks and may succumb to temptation to peek at porn.

Legally speaking, pornography is very dangerous in the workplace, as it can be evidence of a hostile work environment.  Although InPrivate mode may make access to that evidence – in the form of retained files on a PC hard drive — more difficult, the digital evidence may still be recoverable.  Forensics experts have demonstrated that they can (with effort) still reconstruct browsing history when InPrivate mode is engaged.

Further, evidence of World Wide Web pornography on the job need not come just from digital records.  It can come from, say, Employee #1 testifying that he/she witnessed pornography on the monitor of Employee #2.

Some observers are recommending that employers to disable InPrivate mode.  But disabling is difficult, and it addresses the problem only indirectly.  The more direct and complete approach is to use software to block access to adult sites.

–Ben Wright

At the SANS Institute, Mr. Wright teaches IT administrators how to stay out of jail.

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