Monday, January 7, 2013

Don't Store Personal E-mail on your Office Computer System


Can your boss monitor the calls you make on the cell phone you store in a locker provided by your employer?  And what about the personal emails you have saved on your work computer?  

The first question arose in the case of an employee of a Texas police Department. Fannie Garcia was a dispatcher at the Police Depart-ment in Laredo, TX.  While she was working, she kept her personal cell phone in an unlocked locker.  The wife of one of the police officers took Garcia’s cell phone from the locker, and accessed the text messages, videos and photographs she found on Garcia’s phone.  She provided these items - which showed that Garcia was having an affair - to Garcia’s supervisor.  As a result. Garcia was terminated for violating police department rules and regulations.

The question for the court was whether the police department violated the Stored Communications Act when it used photographs and messages that had been download from Garcia's personal cell phone. The  5th Circuit held that that photographs and text messages on a personal cell phone are not protected by the SCA because the phone is not considered a "facility" within the meaning of the Act. The SCA generally protects large data storage facilities, such as internet service providers and search engines from unauthorized access of electronically stored information. 

In doing so, the 5th Circuit joined other federal courts in ruling that the SCA is not intended to provide protection to individual users of personal electronic devices such as cell phones, laptops or other personal computers as these personal devices are not covered facilities. Further, there was no evidence that the department ever obtained any information from the cellular company or network; thus, the department did not violate the SCA's prohibition against unauthorized access to a facility.  

The case is Garcia v. City of Laredo, 2012 U.S. App. Lexis 25370 (5th Cir. 2012). 

Another case involving the privacy of cell phone records concerned Philip Hamilton, a member of the Virginia General Assembly. In addition to his General Assembly job, he was also an employee of the Virginia public schools.  He was sued for bribery, in a case alleging that he proposed to an Old Dominion University official that he would introduce legislation to fund a university position if the university would hire him into the position. 

The main evidence against him was a set of emails between him and his wife that he had stored on his office computer in the public school office where he worked.  In those emails, Hamilton and his wife discussed their financial difficulties, and their hope that the university would give Hamilton a job. In their email exchange, Hamilton told his wife that he would "shoot for" a salary of $6,000 per month.

Hamilton argued that the messages were not admissible in court because they were protected by the husband-wife privilege.  But the government argued that Hamilton’s employer had a computer workplace use policy in effect that provided that emails stored on the work computer were not confidential, and therefore, employees had no reasonable expectation of privacy in the contents of those emails.  

Specifically, the computer policy expressly provided that users have "no expectation of privacy in their use of the Computer System" and "all information created, sent, received, accessed, or stored in the . . . Computer System is subject to inspection and monitoring at any time." 

The court agreed with the government’s argument.  That is, a party waives the marital communications privilege when he "fails to take adequate precautions to maintain . . confidentiality."  The court cited with approval cases in the DC Circuit and the 9th Circuit).   

The case is US v. Hamilton, 2012 U.S. App. Lexis 25482 (4th Cir. 2012). 

What can you learn from these cases?  Electronic communications can become powerful evidence of wrongdoing, and if you keep those communications in the office, then your employer can use those materials against you.  Don't use your office email system for personal communications, and don't store personal emails on your office computer.  Keep your personal cell phone where others do not have access to it.  

The lawyers of Kalijarvi, Chuzi, Newman and Fitch, PC can assist you if you have issues involving your personal email and cell phone records.  Please call us for expert advice.

- this blog entry was prepared by partner Elizabeth L. Newman.  You can reach her at enewman@kcnlaw.com