Cell Phones - Your Rights As An Employee

November 25, 2019

The State Patrol recently announced that it will be issuing cell phones to all sworn employees. This is a logical move, and should relieve an employee from being reliant on their personal phone for work related issues. By conducting work-related business on our personal phones, we make our personal phones subject to open records.  Now that we're moving to a state issued phone, we gain the ability to clearly delineate between our work and personal communication.

 

So what does this mean for us?  Well, that depends on who owns the phone. 

 

PERSONALLY OWNED PHONES 

 

The Supreme Court has decided that data on your personal phone is yours. The government, and by extension management, has no right to that data without a warrant. 

 

So let's apply this to a real-life situation.  Say a supervisor is looking into a work rule violation, not a criminal investigation.  The Garrity warning is read: the employee is compelled to fully, truthfully, and completely answer all questions posed to them. Then the supervisor asks to see the employee’s phone. Are you required to show them your phone then?

 

Answer: NO! Management may not even ask you to show them your personal phone, unless they have a warrant. Now, this changes if you abandon it.  So the moral of the story is to avoid being careless or irresponsible with your cell phone.  Mistakes happen but please try not to lose it.  And DO NOT give management access to your personal cell phone, regardless of the information stored there.

 

STATE ISSUED PHONES

 

Now to the heart of the issue. Your state phone will be paid for by the state. This means they own all of the data, and have every right to the information you keep on there.  Even if the phone is destroyed, management reserves the right to capture and keep all that phone's information on their server. Keep this in mind when using the state phone.

 

Simple rule – if the message is personal, don’t use a work account to send it. You cannot, and should not, expect privacy.  If you receive a message of a personal nature, remind the sender to immediately stop.

 

STATE ISSUED MIFI DATA

 

While we are on the subject, don’t forget who owns and pays for the Mi-Fi you use at work. If you link your personal phone to the Mi-Fi to save your wireless data, you are pulling it through a device paid for by the employer.

 

Checking MACH messages is easy, whether the message is sent by a unit, a troop, or a region. It is a quick, efficient review of information. They'll have to employ a little more effort to review the data on a Mi-Fi account, but it can be done, and it isn’t even that hard to do. If your personal electronics are connected to your work Mi-Fi, we recommend that you eliminate that connection.

 

SUMMARY

 

There are three types of searches – Consent, Pursuant to a Warrant, or Incident to a Lawful Arrest. If you aren’t under arrest (you would know), and you haven’t given consent, management needs a warrant. Make them get one - if they can provide enough probable cause to convince a judge to sign one.

 

We all make choices every day. If you make a mistake that lands you in hot water, you'll only be compounding your mistake by inviting management to view something they are not entitled to. If you are asked to show your personally owned phone to management for any reason, the answer should always be NO!

 

COURT CASES (if you're interested)

 

Everything that I'm telling you has been heavily debated in the court system.  Your privacy is important, and there's been a handful of court cases surrounding how this topic translates in the digital age.  Here's some for you to keep in your back pocket. Hopefully you never find yourself in a situation where you need them.  

 

Privacy of personal phones: 

 

Riley v. California, 134 S Ct. 2473 (2014). Riley was arrested for operating after suspension.  San Diego has a policy to tow vehicles after being cited, and conducting an inventory of the vehicle.  After finding gang paraphernalia and firearms in his vehicle, officers searched his cell phone without a warrant. This case went to the supreme court, and it was ruled that the data within a personal phone is private. The government has no right to the data without a warrant. 

 

Port Authority PBA v. Port Authority of New York and New Jersey, 15-CV-3526 (S.D.N.Y. 2017). Searching an employee's phone is just as private as a person's medical history, personal safes, and home. 

 

Larios v. Lunardi, 2016 WL 6679874 (E.D. Cal. 2016) addresses an employee's expectation of privacy. A supervisor was seeking limited information, and used that as an excuse to examine the entire phone.

 

Huff v. Harness, 2018 WL 2434329 (E.D. Ark. 2018). The court ruled against the employee.  In this case, the employee left their cell phone behind in their cruiser, essentially abandoning property. But even though the court decided against the employee, the employer still had limitations on what the data could be used for.

 

Privacy of city/state owned phones: 

 

City of Ontario (CA) v. Quon 130 S. Ct. 2619 (2010). Quon was having an affair with another city employee.  When the messages came to light, he argued that the messages were of a personal nature and therefore not subject to open records.  The courts ruled against him.  Since the city paid the bill, even messages of a personal nature are the property of the city.

 

Dan Restrepo

WLEA Vice President

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