James Butler's Blog

Public Is Not Private

June 17, 2010 08:17

In a ruling, today, the U.S. Supreme Court decided that, in most situations, government workers have no expectation of privacy with regard to communications made using their government-issued communications devices.

At issue was a case involving an Ontario, CA police department employee and his department-issued pager. During an investigation into whether the excessive minutes expended by its employees' communications each month were the result of hidden, unpaid work-related expenses (work-related communications) or not, the department discovered that most of the communicating the employee was doing during work hours was, in fact, not work-related. The employee sued the police department for violating his Fourth Amendment right to privacy and initially lost. That decision was overturned by the Ninth Circuit when the case was appealed. And now the Supreme Court has overturned that appellate court's decision, reinstating the original court's findings against the employee.

The majority decision reads, in part: "[Government's] warrantless review of [Employee's] pager transcript was reasonable under the O'Connor plurality's approach because it was motivated by a legitimate work-related purpose, and because it was not excessive in scope. See 480 U. S., at 726."

Essentially: If it's work-related, and he is pretty explicit about what he's looking for, your boss can inspect your government-issued cell phone any time he wants.

I am not surprised at this outcome. When the peoples' property is involved, I really don't see how an expectation of privacy can be established. You're a public employee using public equipment. You'd have to reach way out to find justification for expecting any privacy in that situation.

The lesson is: Private is as private does.

You have no expectation of privacy if you shout into your cellphone while riding on a crowded subway, and you have no expectation of privacy when you exchange sex messages with your girlfriend using your company-provided iPhone during work hours. You DO have an expectation of privacy if you are quietly speaking into your phone in a secluded area, or when exchanging sex messages with your girlfriend using your own iPhone while not at work.

While this decision relates to a telephonic paging device, it's no stretch of either the imagination or the legal process to figure that this perspective would prevail in any similar case involving a laptop, smartphone or other communications device supplied by the government, or possibly even a normal company, as well. There are some differences between government and regular business, of course, however if your company gives you a phone, I think you can expect that they will lay claim to its records.

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