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Friday, December 18, 2009

Texting Can Endanger Your Job

Reprint Opelika Auburn News December 20, 2009
By Tommy Eden, Attorney

On December 15, 2009, the United States Supreme Court agreed to hear a highly significant case related to the expectation of employee privacy in the workplace. Police officers with the Ontario, California Police Department sued after learning that their Chief had read text messages sent from their department issued cell phones. The records were provided by a third party vendor. There were hundreds of text messages to personnel contacts, including some sexually-explicit.

The police officers won at the trial court and a deeply divided 9th Circuit Court of Appeals (the most overturned Court of Appeals in the U.S.) upheld the trial court decision finding that the officers had a "reasonable expectation of privacy" for their text messages. That finding was in part based upon evidence that a police official had informally told officers that no one would audit their text messages, if the officers personally paid for charges above a monthly allowance. The Department had a written policy stating in part as follows: "reserves the right to monitor and log all network activity including e-mail and Internet use, with or without notice." The Chief had previously condoned personal use of department-cell phones. Expect a ruling from the high court in Spring 2010.

On a similar issue involving cell phones in a criminal setting, the Ohio Supreme Court, again in a sharply divided opinion, held that Police officers must obtain a search warrant before searching the contents of a suspect's cell phone unless the officer’s safety is in danger. The issue has never before been reached by another state high court or the U.S. Supreme Court. Antwaun Smith was arrested on drug charges after he answered a cell phone call from a snitch crack cocaine user. Officers took Smith's cell phone and, acting without a warrant or his consent, searched it. The police found a call history and stored numbers evidencing that Smith had made prior calls to the drug user. The Ohio Supreme Court overturned the 12year conviction on cocaine possession, cocaine trafficking, tampering with evidence, possession of criminal tools; holding that the evidence obtained through the cell phone search was inadmissible because it violated the constitutional ban on unreasonable search and seizure. Expect this one at the U.S. Supreme Court as well.

Common Sense Counsel: As the use of computers, cell phones and text messages keeps expanding as a means of communication and commerce, electronic privacy rights of employees at work, or those charged with a crime, is front and center. For Alabama Employers it is absolutely critical that you have a written Electronic Communications policy covering cell phones, telephone systems, computers, internet use, voice mail, texting, video conferencing, pagers, PDA’s, faxes, websites visited and more. For employees it means always knowing that you can be watched, so don’t be naughty. For criminals - leave Lee County.

Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-246-2901. Blog at