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

by Shipman & Goodwin LLP

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?


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.

© Shipman & Goodwin LLP | Attorney Advertising

Written by:

Shipman & Goodwin LLP

Shipman & Goodwin LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.