Originally appeared in the CAS Weekly Newsletter

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Dear Legal Mailbag:

Last week, one of the teachers in my school told me that another teacher may be harassing a female colleague by email. The teacher making this report did not have many details, and it all seemed rather speculative to me. When I pressed her about her suspicions, she started to equivocate. She told me that she has a "hunch" about this, and that the "victim" acts like an abused spouse when the alleged perpetrator is present, but she admitted that she did not have any hard evidence.

I told the teacher that I couldn't do anything on such limited information. The teacher told me that she understands, and she promised to keep her eyes open for more concrete evidence. But this teacher's report got me thinking. We all have to sign off on the Acceptable Use Policy, and that Policy expressly warns users that they should have no expectation of privacy and that Administration reserves the right to access the personal emails of users, with and without cause.

The alleged perpetrator must have signed off on the Acceptable Use Policy, waiving any privacy claims that he may otherwise have had. Under these circumstances, does Legal Mailbag agree that I can poke around in the email of the alleged perpetrator and see what I can find? With the holiday break coming up, I will have some free time, and it might even be interesting.

Signed,
Fishing Expedition

Dear Fishing:

Legal Mailbag suggests that you find some other use for any free time you may have. The scope of privacy expectations continue to evolve, but your plan to "poke around" a teacher's email is a bad one.

We must start with the premise that your searching through the teacher's email is a "search" for purposes of the Fourth Amendment, which protects us all from unreasonable searches and seizures on behalf of the government (and you are considered the government for this purpose). The United States Supreme Court has held that a public employer may search the person and effects of a public employee as long as two conditions are met. First, the employer must have reasonable (as opposed to probable) cause to suspect that the search will turn up evidence that the law or work rules have been violated. Second, the scope of the search must be reasonably related to the purpose of the search and must not be excessively intrusive. O'Connor v. Ortega, 480 U.S. 709 (1987). These standards may sound familiar, and they should, because they are largely restated from the United States Supreme Court decision concerning student searches. New Jersey v. T.L.O., 469 U.S. 325 (1985).

Applying this standard, Legal Mailbag presumes that we can all agree that you do not have reasonable cause for a search. Accordingly, your plan to "poke around" the teacher's email will be permissible only if the teacher's signing off on the Acceptable Use Policy can be considered a waiver of the teacher's constitutional right to be free of unreasonable searches and seizures. Given that the alleged perpetrator needs to use email to do his job, you have a tough row to hoe in arguing that he voluntarily (and thus enforceably) waived his Fourth Amendment rights by signing off on the Acceptable Use Policy.

The evolving case law suggests that any such waiver is not enforceable to permit government actors to conduct searches without regard for the Fourth Amendment. To be sure, some searches are permissible. In 2001, the Second Circuit reviewed a claim by an employee whose employer searched his work computer without his permission or even knowledge. It held that he had a legitimate expectation of privacy, but it further found that the employer had reasonable cause to conduct the search. Therefore, the court ruled that the employer's search of the work computer did not violate the employee's rights. Leventhal v. Knapek, 266 F.3d 64 (2d Cir. 2001). By contrast, in Brown-Criscuolo v. Wolfe, 601 F. Supp. 2d. 441 (D. Conn. 2009), the district court ruled that a superintendent's action in reading a clearly-personal email, albeit on the district's system, violated the employee's expectations of privacy and thus the Fourth Amendment. The court rejected the superintendent's claim that the district had reserved the right to monitor all email use, because it was not his job to do so.

Even the United States Supreme Court has struggled with this issue, recognizing in a 2010 case that the ubiquity of technology may require rethinking the balance between employer interests and employee privacy concerns. In City of Ontario v. Quon, 560 U.S. 746 (2010), the City provided pagers for business use, and after months of incurring extra fees when limits were exceeded, the Police Chief decided to review the pager usage to determine whether the monthly limit was either too low or too high. The City contacted the pager service provider and obtained transcripts of the messages of two employees who had repeatedly exceeded the limit. Upon review, the City found that the majority of the messages were not work-related, and that one employee's messages were sexually explicit between himself and his wife, and between himself and his girlfriend. The employees sued the City, arguing that their constitutional right to be free from unreasonable searches and seizures was violated. The Supreme Court disagreed and found in favor of the City.

In its decision, the Court recognized that the special needs of an employer may be sufficient to justify searches for work-related misconduct. The Court found that the search in that case was reasonable for two main reasons. First, the search was motivated by a legitimate work-related purpose: the desire to assess the monthly usage limit. Second, the search was not overly intrusive: the pagers had been provided by the employer and were not private. However, the Court cautioned that the scope of privacy expectations is evolving as we rely increasingly on technology in our daily lives:

The Court must proceed with care when considering the whole concept of privacy expectations in communications made on electronic equipment owned by a government employer. The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear. . . . Prudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices.

Rapid changes in the dynamics of communication and information transmission are evident not just in the technology itself but in what society accepts as proper behavior. . . . At present, it is uncertain how workplace norms, and the law's treatment of them, will evolve.

Given the evolving principles, school officials are well-advised to exercise their right to review employee email on the district server only when they have reasonable cause for the "search."

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.