Should government employees have an expectation to privacy in text messages?

Municipal Litigation Reporter

5/2/2012

Although government employees may generally accept that the government can search their work computers or offices, they may also assume that the government cannot search their personal computers without a search warrant. Often, however, whether a government employer can search files depends on whether the government employee had a reasonable expectation of privacy. According to Lori Hoetger, with regard to text messages, government employees should have a reasonable expectation of privacy with respect to the content of the message but not with respect to the addressee of the message.

The Fourth Amendment of the U.S. Constitution protects individuals from unreasonable searches and seizures. The courts have developed a complex jurisprudence related to what is a reasonable search under the Fourth Amendment. For instance, the U.S. Supreme Court has held that the Fourth Amendment’s protection applies to people instead of places, so the individual’s reasonable expectation of privacy is important. The individual must have exhibited a subjective expectation of privacy, and the expectation of privacy must be deemed reasonable by society.

The Court has also held that government employees have a right to be free from unreasonable searches, too, because the Fourth Amendment applies to all government actors, including government employers. The Court held that an operational realities test should be applied to determine whether the government employee had a reasonable expectation of privacy with regard to the workplace. Similar to the general test for reasonableness, the government employee must have had a subjective expectation of privacy with respect to the item being searched by the government employer, and society must consider that expectation of privacy to be reasonable.

The courts have struggled to keep pace with the rapid development of communication technologies and how the new technology impacts the reasonableness considerations of Fourth Amendment. Courts have held that government employees may have a reasonable expectation of privacy with respect to the content of cell phone calls, but the government employee will not have a reasonable expectation of privacy with respect to the numbers dialed because the dialed numbers have already been disclosed to the telephone company that provides service to the cell phone. Similarly, the content of personal calls made from work telephones in the office have been protected from searches by government employers, too.

The Court recently heard a case involving a government employee’s expectations of privacy with respect to text messages sent from a pager provided by the government employer. The employee had been disciplined because the text messages were inappropriate and exceeded the allowed number of characters. The district court found in favor of the city government, but the Ninth Circuit Court of Appeals held that the employee had a reasonable expectation of privacy with respect to the content of the text messages.

The U.S. Supreme Court held that the city was justified in searching the content of the text messages because the city already had to audit the character limit of the text messages to ensure that the employees did not exceed the limit. The author suggests that courts should adopt a bright-line rule stating that government employees have a reasonable expectation of privacy in the content of the text messages that are sent on government-provided devices but not in the numbers that are dialed on the devices.

PUBLICATION-TYPE: Newsletter

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