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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Internet Pornography in the Workplace

Employer Liability

In the workplace, electronic pornography is legal poison. In a “hostile environment” lawsuit against a business, the existence of porn on work computers or in work e-mail systems can be highly prejudicial. Even though the business objected to porn and enforced an explicit policy against it, its presence can reflect horribly on the business as a case goes to the courtroom.

In Williams v. City of Chicago e-pornography backed the police department into an indefensible position. After a female police officer complained about pornography in department computers, the department took action in accordance with its policy against pornography and hostile work environment. Still, officer Williams sued, and the court said the case should go to a jury for decision. The basic question for the jury would be whether the porn in department computers was so pervasive that it injured officer Williams.

Wow. How can the police department withstand a jury trial focused on the amount of pornography on the department’s computers? Such a public trial would be highly embarrassing, even if the department eventually won the case! The local media would have a field day. At this point, the city has strong incentive to settle with Ms. Williams and pay her a lot of money.

Behold the city’s unenviable position. Even after it settles, its problem remains. The continued presence of Internet pornography can prejudice the city in future cases brought by future employee-plaintiffs, just as it did in Ms. Williams’ case.

This police department has good reason to use technical measures – filters and blocks – to mitigate its problem.

Update: Administrators can now use the free Threat Detector service to discover which unauthorized places employees have been visiting.

–Benjamin Wright

Mr. Wright is an advisor to CyberPatrol, thought leader in employee Internet safety.

The formal citation to Williams v. City of Chicago is (US Dist Ct, N.D. Illinois, E Div 03C2994, Jul 13, 2004).