|Are Personal Electronic Device Records Private?|
CELL PHONE & PERSONAL COMPUTER DEVICE RECORDS—ARE THEY PRIVATE?
By ANDREA ROCCO, Attorney
With the integration of technology in the daily operations of law enforcement, there is a concern public employers will attempt to access cell phone and/or personal computer device (iPads, laptops) records. Indeed, several municipalities have drafted policies attempting to access phone records which often venture into territory that violates a police officer’s constitutional rights. There is a distinction in the type of phone at issue: department issued or personal. And that distinction leads to a difference in the rights that are protected. Department or employer issued phone records are not protected. At any time, the employer can access the phone, the texts, the emails and any other data. See City of Ontario v. Quon, 130 S. Ct. 2619 (2010). So if you carry a department issued phone, use it knowing whatever you have on that phone is not private. The texts you send, the calls you make, the web sites you access, are available to your employer.
Unlike a department issued device, a personal cell phone and its data cannot be searched by an employer without a showing the search is reasonable. The United States Supreme Court created a two-step process to determine whether a public employer can search personal belongings of an employee. In O’Connor v. Ortega,480 U.S. 709, (1987), the Court held the search must be justified at its inception and the actual search itself must be reasonably related in scope to the circumstances that justified the search in the first place. A year before O’Connor was decided, the Ninth Circuit Court found a violation of Fourth Amendment rights when a lieutenant ordered a strip search of police officers after an accusation the police stole a suspect’s money. In Kirkpatrick v. City of Los Angeles, 803 F.2d 485, (1986), the court found the lieutenant did not establish the necessary reasonable suspicion to allow such an intrusive search.
In another case, the California Highway Patrol seized the personal phone of a trooper and searched it relying upon its policy notifying the troopers that any work on personal phones can be retrieved upon demand. The District Court held that an employee knowing that work product on a personal phone is open to inspection in no way puts the employee on notice that the government will also have carte blanche to review everything an employee keeps on his or her phone. “To be sure, if the government’s argument is taken to its logical conclusion, permissibly keeping work files at home would permit the government to search an employee’s house. Certainly employees have a legitimate expectation of privacy in their homes, and their interest in the contents of their cell phones is not materially different.” The Court focused on the fact the employer searched everything on the personal phone and did not limit the search to evidence of specific wrongdoing. See Larios v. Lunardi, 2016 WL 6679874 (E.D. Cal. 2016).
The courts recognize the personal and sensitive information that may be kept on a person’s cell phone but also permit the search if the employer can establish reasonable suspicion that employee misconduct connected to department related business can be found on the phone. If an employer can establish an adequate nexus to an officer’s job the search of a private phone may be permitted. The OPBA contends the Employer should follow the same steps taken when a search warrant is sought: outline in writing what information is being sought and what facts support the search. Additionally, the employee should be permitted to witness the search. An employer can’t simply declare there is a suspicion of work related misconduct and go through a private cell phone.
It is not only an employer that wants to search personal cell phone records. Sometimes, records on a personal device are requested through a public records statute. This year the California Supreme Court determined the records on a personal cell phone can be accessible by a public records request but only if the records on the cell phone relate in some substantive way to the person’s business or job. The Court also determined that it is the employee/owner of the phone and not the employer who will determine if there are any records on the phone that should be turned over. The Court instructed the employer to pass on to the employee the public record request and rely on the employee to search the phone. See City of San Jose v. Superior Court, 2017 WL 818506 (Cal. 2017).
The best way to avoid your employer accessing your private cell phone or computer device records is to not use your personal device for or at work. If you do not have a personal device at work, it will be that much more difficult for the supervisor to order its immediate transfer. The employer will have a tougher case to make if your personal device is never used or only used for minor personal matters while on duty. You already know as a police officer your off-duty conduct can sometimes result in discipline. It is not a stretch that an employer could attempt to search your private device on the basis there is evidence of conduct “unbecoming.” If a supervisor orders you to turn over a personal device, you need to call your OPBA attorney immediately. Likewise, if your employer distributes a policy allowing access to personal records with or without claiming a work-related nexus, you should contact the OPBA. The OPBA will aggressively fight against any search of private devices.