CAS Legal Mailbag Question of the Week – September, 2016 #2

by Shipman & Goodwin LLP
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Dear Legal Mailbag:

Recently, a parent called to complain about a teacher’s being “spaced-out” when she talked to him about her child. This parent is quick to draw judgments about people and even quicker to share them. I figured “better safe than sorry,” so I asked IT to give me access to his district email account so that I could check him out. I spent the weekend going through his email, and it was fascinating to read about some dysfunctional family dynamics, his planning a trip to the Galapagos Islands, and even some good recipes for BBQ. I did not find anything to suggest that he has any substance abuse problems. I was miffed, however, when I read several of his emails to colleagues that referred to me as “the Idiot.” Given that we have an acceptable use policy that puts employees on notice that they have no privacy expectations in using the district email, I presume that I have every right to confront him about these insulting emails. Do you think that his disrespectful emails warrant a suspension or just a letter of reprimand?

Signed,
Stung

Dear Stung:

Let’s back up here. You searched this teacher’s email comprehensively because some critical parent said that he was “spaced-out”? You may well have violated his Fourth Amendment rights, and if I were you I would just lay low.

I understand that your district has an acceptable use policy and that teachers (and others, including you) agree to waive privacy rights in using the district email server. However, it is not clear that such an agreement would be an enforceable waiver of employees’ Fourth Amendment right to be free of unreasonable searches. Moreover, the courts have been reluctant to make sweeping decisions in such cases because technology and its dominant role in our lives are evolving so rapidly.

The general rule in the public sector is that the employer may conduct searches of employees and their property when there is reasonable cause for the search at its inception and the scope of the search is reasonably related to the object of the search (a standard similar to that announced by the United States Supreme Court in T.L.O. v. New Jersey (1985) for searches of students and their possessions). In City of Ontario v. Quon, 130 S. Ct. 2619 (2010), the Supreme Court considered the privacy rights of employees in using government-issued technology. There, the police chief was concerned that the messaging charges for the city-owned cell phones were way over budget. Curious as to how the police officers were using the text messaging service at city expense, he asked the provider to send him copies of messages from some police officers. When he read the emails, he found messages with sexual and other inappropriate content, and he imposed discipline.

The officers brought suit, claiming that the chief had engaged in an illegal search. The court rejected that claim because, it ruled, the chief had reasonable cause for the search – to review sample text messages to find out why the related charges were so high. However, the court’s comments on technology and privacy expectations give us pause on the question of searching email and cell phones issued by a public employer:

The court must proceed with care when considering the whole concept of privacy expectations in communications made on electronic equipment owned by a government employer. The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear. . . . Prudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices.

Rapid changes in the dynamics of communication and information transmission are evident not just in the technology itself but in what society accepts as proper behavior. . . . At present, it is uncertain how workplace norms, and the law’s treatment of them, will evolve.

A public employer must have reasonable cause to conduct a search of an employee or his/her possessions. Moreover, we see that that the court notes that norms of behavior and related expectations are still evolving. Given where we are today, you should not just search willy-nilly the emails of this teacher or any other employee. You do have the right to search emails when you have a good reason to do so. But this was not such a case.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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