Electronic Privacy on the Job

A good review of a rising issue in modern life. Electronic privacy. Specifically, if a government agency issues an electronic device (cell phone, computer, etc) how far can the department go in insuring the employee is using it only for official business.

Electronic Privacy on the Job - Article - POLICE Magazine

Can a department monitor its officers' use of official devices? by Devallis Rutledge


Increasingly, law enforcement agencies issue electronic communication and information equipment to employees for their use in performing official duties. Such devices may include desktop or notebook computers, mobile digital terminals in police cars, iPads, cell phones, pagers, BlackBerrys, and other products that will come onto the market as the technology develops.


....the U.S. Supreme Court (in a case considering a set of facts from nine years earlier) made a very limited attempt to give constitutional guidance. The issue presented was whether police managers violated a sergeant's Fourth Amendment privacy rights by auditing the sergeant's text messages sent during duty hours over a department-issued electronic paging device.


City Of Ontario V. Quon


Jeff Quon was a SWAT sergeant at the Ontario (Calif.) Police Department. In 2000, he signed a written statement acknowledging that he had read and understood the department's "Computer Usage, Internet and E-mail Policy." This policy specified that the City "reserves the right to monitor and log all network activity including e-mail and Internet use, without notice. Users should have no expectation of privacy or confidentiality when using these resources."


The next year, Quon was issued an alphanumeric pager capable of sending and receiving text messages. Although the computer policy did not specifically mention text messaging, managers notified employees that the policy would also apply to the new devices.


...In the course of ... [an] audit of on-duty texting, management discovered that Quon was using the pager for personal messaging during work hours...


As a result of these findings, Quon was disciplined, apparently for unauthorized personal use of official equipment. He then sued the department, claiming a violation of his Fourth Amendment rights.


...the jury found that the employer conducted the audit of Quon's texts for a legitimate, work-related purpose-namely, to evaluate the need for a new service agreement...On appeal, the Ninth Circuit Court of Appeals reversed, ruling that Quon had a reasonable expectation of privacy in his on-duty text messages in spite of the computer policy, and that the employer's audit was an unreasonable invasion of that privacy right...The Supreme Court, in a judgment concurred in by all nine justices, reversed the Ninth Circuit and held that assuming Quon had a reasonable expectation of privacy in his texts sent via an employer-furnished pager, management's limited audit of his on-duty texts for the purpose of evaluating the need for a new service agreement did not constitute a violation of the Fourth Amendment.


Takeaway Value


•Public employers are bound by the Fourth Amendment.  

•Legitimate expectations of privacy may evolve with changing technology. ...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."


•It is important for employers to have clear, comprehensive policies that put employees on notice of the conditions of use of department-issued equipment.

•Since police communications may become evidence in a criminal case, officers should realize the risk that their messages may have to be disclosed. 


•The ruling in Quon may not apply to all future scenarios of employer access to employee communications made over employer-issued devices. 

The Supreme Court emphasized that it was not necessarily finding that Quon had a reasonable expectation of privacy in his texts over departmental pagers but was simply assuming that he did for the sake of argument, since the case could be resolved by finding any invasion of such an arguable expectation was reasonable under all of the circumstances.


Said the court, "Quon was told that his messages were subject to auditing. The search was permissible in its scope. The employer did not violate Quon's Fourth Amendment rights."


Prudent Precautions


...two conclusions seem safe to draw.


Management: In consultation with civil legal advisers, managers should promulgate written policies covering the conditions of employees' use of all issued equipment,


Employees: Officers and others who are assigned communications devices by their employer should be sure they understand and abide by applicable policies regarding personal use and management oversight.

Devallis Rutledge is a former police officer and veteran prosecutor who currently serves as Special Counsel to the Los Angeles County District Attorney. He is the author of 12 books, including "Investigative Constitutional Law."

I recall the case of a field trainer who was using his department issued laptop for porn.  He used a scrubber program to clean the hard drive and was shocked when the computer nerds recovered the data...if he wanted to get away with it he should have "lost" i.e. destroyed the laptop and made that report to the department. 

The fact this as a 9-0 ruling from the Supreme Court says something. Hey man, you knew the rules when you received the new top, don't complain when you get spanked.  If the department is paying for your electronic device, they have (IMHO) the right to make sure you're not abusing it.

Now there is a case working through the courts were an officer used his personal cell phone during the course of the investigation and defense subpoenaed his records.  And the court allowed it.  As I recalled (I'm going by memory) the case is working it's way through the courts.  I can't agree with that...should they also have access to his home phone records.

Again, good article on a current issue.