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Legal Report October 2009


EMPLOYEE MONITORING. A federal court has ruled that an employee may pursue a lawsuit against his employer over the use of keylogging technology. The technology, used for employee monitoring, might violate federal law, determined the court, if the company’s actions affected interstate commerce.

Metteyya Brahmana was hired as director of sales and marketing for CyberData Corporation in 2005. While Brahmana worked at the company, he argued with his supervisor Phillip Lembo over the nature and direction of the company.

In July 2008, several CyberData employees received an anonymous e-mail saying, among other things, that Brahmana had lied about his educational credentials and that his ex-wife had filed a restraining order against him. Brahmana complained to Lembo about the untrue emails. Lembo told Brahmana that a CyberData employee had sent the message but that the best thing Brahmana could do about the situation was to increase his sales. After the e-mail incident, employees treated Brahmana differently. He resigned in October 2008.

After he left the company, Brahmana had a disagreement with Lembo over a claim for back pay. During one discussion, Brahmana said that if the matter was not settled, he would file a wage claim with the state. Lembo told Brahmana to go ahead and file a claim. He also told Brahmana to make sure and notify Joe Henard at the Santa Cruz District Attorney’s Office. Brahmana was shocked because he had been in contact with Henard over a driver’s license renewal application. However, Brahmana had not told anyone at CyberData about the issue.

Brahmana later learned from other CyberData employees that Lembo frequently used keylogging technology to monitor the activity of employees. Brahmana suspected that Lembo had intercepted password information and logged into his personal e-mail account without his permission.

Brahmana filed a lawsuit against Lembo and CyberData, claiming invasion of privacy—infringement of his Fourth Amendment rights to be free of unreasonable search and seizure—and violation of the federal Electronic Communications Privacy Act of 1986 (ECPA), which makes it illegal to intentionally intercept electronic communications.

The U.S. District Court for the Northern District of California dismissed Brahmana’s privacy claim, finding that the Fourth Amendment prohibition applies only to government action and cannot be used against a private company. However, the court ruled that Brahmana could pursue his ECPA claim.

If Lembo did use a keylogger to glean information about Brahmana’s private email passwords, said the court, that action could be considered an interception of electronic communications. However, the ECPA also requires that, to be a crime, the information intercepted must affect interstate commerce. This issue was left up to a lower court to decide after requiring further discovery. (Metteyya Brahmana v. Phillip Lembo, U.S. District Court for the Northern District of California, No. C-09-00106 RMW, 2009)

EXPERT WITNESSES. The U.S. Supreme Court has ruled that laboratory reports used in criminal cases may not be used at trial unless scientific experts testify to the validity of the reports. The decision centered on a defendant’s right to confront his or her accuser under the Sixth Amendment to the U.S. Constitution.

In a drug possession case, the prosecution used a laboratory report as primary evidence that Luis Melendez-Diaz was carrying bags of cocaine when he was detained by police. Attorneys for the accused objected to the admission of the report, arguing that Melendez-Diaz had a right to confront his accuser under the Sixth Amendment. The objection was overruled, and a jury convicted Melendez-Diaz of drug possession. Melendez-Diaz appealed.

The Appeals Court of Massachusetts rejected Melendez-Diaz’s claim, ruling that forensic analysis is not subject to Sixth Amendment rights to confrontation. Melendez-Diaz appealed the case to the U.S. Supreme Court.

In a five to four decision, the Court ruled that the report represented “the precise testimony the analysts would be expected to provide if called at trial,” and that these types of reports are “functionally identical to live, in-court testimony.” Therefore, determined the Court, the analyst who produced the report must testify to its contents at trial.

The dissenting justices argued that the ruling will be excessively burdensome to already understaffed crime labs. Writing the dissenting opinion, Justice Anthony Kennedy noted that the Court’s ruling did not reflect the reality of criminal forensic labs in that several people are often responsible for the results of a single test. Kennedy also argued that the ruling would needlessly jeopardize criminal cases.

Kennedy noted that “the Court threatens to disrupt forensic investigations across the country and to put prosecutions nationwide at risk of dismissal based on erratic, all-too-frequent instances when a particular laboratory technician, now invested by the Court’s new constitutional designation as the analyst, simply does not or cannot appear.” (Melendez-Diaz v. Massachusetts, U.S. Supreme Court, No. 07-591, 2009)


WHISTLEBLOWERS. Lawmakers on the Senate Homeland Security and Governmental Affairs Committee’s Subcommittee on Oversight of Government Management, the Federal Workforce, and the District of Columbia recently approved a whistleblower protection bill (S. 372). The bill must now be taken up by the full committee.

The bill would expand whistleblower protection of federal employees to clarify that any disclosure is protected under the law, to provide a process to review suspensions and revocations of security clearances, and to protect disclosures of censorship of scientific information.

At a recent hearing, the subcommittee addressed two additional whistleblower protection issues that are included in H.R. 1507, the version of the bill pending in the House of Representatives, to determine whether these issues should be added to S. 372. The first is how to provide secure channels for whistleblowers bringing information that could endanger national security. The second issue is whether to allow whistleblowers to bring cases before a jury if the process within the government is not working.

In her testimony before the subcommittee, Danielle Brian, executive director of the Project on Government Oversight, recommended that the committee expand whistleblower protection to national security information with no conditions. Brian noted that the FBI’s separate whistle blowing system for national security employees, established more than 10 years ago, has not reported any successful resolutions of such cases, though several major disclosures of wrongdoing have been reported directly to the press.

Brian also noted that entrusting such employees with vital data but then refusing them protection out of fear that those secrets might be disclosed makes no sense. “If we value these employees enough to entrust them with our secrets, we must also trust that they will protect those secrets when working to correct unaddressed problems or threats,” she told the committee.

Rajesh De, deputy assistant attorney general with the Office of Legal Policy within the Department of Justice, agreed that whistleblower protections need to be extended in cases of national security information. However, he proposed that Congress create a protection board within the executive branch. The board would be composed of officials from key agencies, appointed by the President, who would hear and adjudicate national intelligence issues.

Witnesses were divided on the issue of jury trials for whistleblower complaints. Robert Vaughn, a professor of law at American University in Washington, D.C., testified that the rules of evidence in the judicial system are more than adequate to handle whistleblower cases and that federal employees must have the right to appeal administrative decisions to the courts.

William Bransford, general counsel for the Senior Executives Association, a nonprofit organization representing executives in the federal government, disagreed with Vaughn. Bransford argued that jury trials would allow problem employees to manipulate the system. At the hearing, Bransford said: “Adding jury trials to the mix will give even the best manager pause before confronting an employee who has made a disclosure, regardless of how valid the manager’s case is or how pure the manager’s motives are.”

CYBERSECURITY. A bill (S. 773) introduced by Sen. John Rockefeller (D-WV) would create a program to review and improve cybersecurity.

The bill would establish a cybersecurity advisory panel to provide guidance to the President on cybersecurity issues relating to the federal government’s data systems. Under the proposal, the Secretary of Commerce would provide cybersecurity status and vulnerability information to the panel and would also create regional cybersecurity centers that would help small and medium businesses protect their data systems.

Under the measure, the National Institute of Standards and Technology (NIST) would also establish cybersecurity standards for all federal government, government contractor, or critical infrastructure information systems.

S. 773 has three cosponsors and has been referred to the Senate Commerce, Science, and Transportation Committee.

ANTITRUST. A new law (P.L. 111-30) extends penalties for antitrust violations established in 2004 under the Antitrust Criminal Penalty Enhancement and Reform Act. The new law extends the penalties through June 22, 2010.

The enhanced criminal penalties for antitrust violations that were extended by the law include maximum prison sentences for individuals increased from three to 10 years; maximum individual fines increased from $350,000 to $1 million; and corporate fines increased from $10 million to $100 million.

The increase in penalties is designed to provide the Department of Justice with additional leverage in plea negotiations against corporate defendants.



BACKGROUND CHECKS. A new law in Washington State (formerly H.B. 1844) requires that state employees who are responsible for issuing drivers’ licenses, vehicle licenses, or other state identification documents undergo a criminal background check. The background checks will be required before a person is hired, and the process will be repeated every five years for current employees.


IDENTITY THEFT. Nebraska legislators have enacted a law (formerly H.B. 155) establishing new identity theft crimes. Under the law, knowingly providing false personal identifying information or a false identification document to a court or law enforcement officer is a felony. Knowingly providing such false information to a prospective employer with the goal of gaining employment is a misdemeanor.

This column should not be construed as legal or legislative advice.