Saturday, January 26, 2008
Sex, Lies, And Texting: Reports on Kwame Kilpatrick Case Misstate Potential Privacy Interest In Government Owned Devices Used By Employees
The Kwame Kilpatrick story has been all over the news, and I wanted to address a legal aspect of it that has been somewhat misreported. The brief facts of the scandal are as follows: Kilpatrick, the married mayor of Detroit, and Christine Beatty, his then married chief of staff, testified last summer in a police whistleblower lawsuit that they had no sexual or romantic ties in 2002 and 2003. The Detroit Free Press, however, got its hands on approximately 14,000 text messages on Beatty's city-issued pager for those years and found many examples of such ties. For instance:
-on October 3, 2002, Kilpatrick texted Beatty, "I'm madly in love with you."
-on October 16, 2002, Kilpatrick texted Beatty, "I've been dreaming all day about having you all to myself for 3 days. Relaxing, laughing, talking, sleeping and making love."
As legal experts have noted, these text messages and other evidence might form an adequate basis for perjury or obstruction of justice charges against the pair.
The misstatment of law which I wanted to address is the categorical conclusion of many reporters on the story that employees never have a Fourth Amendment privacy right in text messages sent and received on government owned devices. Such statements can be found all across the reporting on the story:
-"But once even private citizens start using company equipment in their communications — whether it's e-mail from the office computer or text messages from the company cell phone or BlackBerry — expectations of privacy disappear. 'There is no right of privacy then. An employer can do anything he wants.'"
Such sweeping statements are misleading. True, when the government, like any employer, tells an employee that an employer-issued computer, phone, or other device is subject to search, the employee likely has no reasonable expectation of privacy and thus no Fourth Amendment right in his use of the device. That said, when an employer does not include such a disclaimer about the possibility of a search, courts often find that employees do have reasonable expectations of privacy and Fourth Amendment rights, as I noted in my reporting on a case where a court found that a search of a reverend's church-owned computer violated his Fourth Amendment rights.
Similarly, in Quon v. Arch Wireless Operating Co., Inc., 445 F.Supp.2d 1116 (C.D. Cal. 2006), a lieutenant told police department employees that he would not audit their city-issued pagers as long as they agreed to pay overages. The pagers were subsequently audited, but the District Court for the Central District of California found that the audit violated the employees Fourth Amendment rights and that the text messages recovered were inadmissible because, inter alia, the employees had a reasonable expectation of privacy in their use of the pagers. Id. at 1141. The court also found that the fact "[t]hat the pager in question was owned by the City add[ed] nothing by itself to the analysis" and rejected a "per se rule that public employees cannot have a reasonable expectation of privacy when using property owned by their employer." Id.
Thus, it seems clear that employees, including public employees, can have privacy interests in their employer-owned devices, with the key question being whether and to what extent the employer communicated to the employee that the device could be searched.