8th Circ rules against fird UNL employee's privacy interest in computer files

Gerald Biby v. University of Nebraska U.S. Court of Appeals Case No. 04-3878A former University of Nebraska researcher who said he was fired in a dispute over a contract with a company that bought one of the university's patents lost his appeal Monday.The 8th U.S. Circuit court of Appeals rejected claims by Gerald Biby, who sued the university in 2003. District court did not err in granting employer's motion for summary judgment on plaintiff's Fourth Amendment claim, as plaintiff failed to show he had a reasonable expectation of privacy in his workplace computer or that his employer's search was unreasonable in inception or scope; defendant had no protectable property interests in his employer's contract with a third party, nor does the agreement in question acknowledge him as an inventor of the technology or an intended recipient of royalty income. Judge Bye, concurring.Biby was employed by NU as a researcher in the Industrial Agricultural Products Center at the University of Nebraska-Lincoln, which finds non-agricultural uses for farm products.Biby helped develop a biodegradable card to replace plastic bank and telephone cards, which do not easily break down when disposed of in landfills. Biby and two other researchers applied in 1997 for a patent on the biodegradable cards, which is university policy, and were to share in any profits from their sale. Later that year, NU entered into a contract with Corn Cards International for the rights to use the new technology. But in 1998, Corn Card began discussions with Gemplus, a card manufacturer interested in using the technology in Europe. After Corn Cards threatened to file a lawsuit against the university for not approving the deal with Gemplus, Biby said NU officials sent a campus security officer to his office and removed information about the new cards from his computer in violation of school policy. NU then put Biby on administrative leave, alleging that he had misrepresented himself in his dealings with Corn Card and Gemplus as having authority to obligate the university contractually and that he had disobeyed the order not to contact Corn Card directly. He was fired in 1999. Biby denied claims by the university that he consented to the search. He said he was coerced into permitting it and that he gave in only when it became obvious he had no other choice. The appeals court rejected his claims that the school violated his right of privacy and due process, among other things. "In both versions of the university computer policy ... the computer user is informed not to expect privacy if the university has a legitimate reason to conduct a search," wrote Judge Diane Murphy. "The user is specifically told that computer files, including e-mail, can be searched when the university is responding to a discovery request in the course of litigation." Biby asked for lost wages and benefits, lost royalties from the sale of the card technology and unspecified punitive and other damages. The 8th circ further found no due process violation in the patents as pl was not a 3rd party beneficiary under Nebraska law: To have an enforceable property right as a third party beneficiary under Nebraska law, the named parties to the contract must have contemplated the third party's rights and interests and provided for them. Spring Valley IV Joint Venture v. Neb. State Bank of Omaha, 690 N.W.2d 778, 782 (Neb. 2005).Without a cognizable property interest in the TLA, Biby's due process claim must fail. Judge Bye concurring, complained the majority too easily brushed off the plaintiff's privacy claim in the university campus computer, "The University’s privacy policy created an expectation the contents of his computer are to a certain degree private. The policy specifically states “a user can expect the files and data he or she generates to be private information.” Still the University had a legitimate reason to search to computer to handle the patent dispute