William A. Herbert, Deputy Chair and Counsel New York State Public Employment Relations Board

1. Reasonable Expectationof Privacy When UsingEmployer Email28th Annual Carl A. Warns, Jr.Labor & Employment Law Institute,Louis D. Brandeis School of Law William A. Herbert, Deputy Chair and Counsel New York State Public Employment Relations Board 80 Wolf Road, Suite 500 Albany, New York 12205 (518) 457-2614 wherbert@perb.state.ny.us

2. Privacy Expectations and Other Technological Tools Webmail Personal Laptops Flash drives Home computers Texting RFID Social networking GPS Websites Biometrics Blogs Genetic ID Blackberries Smartphones • The Reasonableness of the Search • Elephant in the Room: Ediscovery -2-

3. Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J. dissenting] [The Founders] knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment -3-

4. Sources of Law 1. Fourth Amendment 2. State Constitutional Provisions 3. Common Law: Intrusion upon Seclusion Tort 4. State and Federal Statutes a. Electronic Communications Privacy Act of 1986 b. National Labor Relations Act c. Open Records Laws d. State laws mandating notice 5. Terms of a Collective Bargaining Agreement 6. Laws of Other Countries -4- l

5. 2007 American Management Association Survey 304 companies surveyed 28% terminated employees for e-mail misuse violations of company policies inappropriate or offensive language excessive personal use breach of confidentiality 45% track content, keystrokes, and time spent at keyboard 10% monitor social networking sites -5-

6. Justice Harlan’s Classic Formulation for an Enforceable Expectation of Privacy Katz v. United States, 389 U.S. 347, 361 (1967) Whether the individual possessed a subjective expectation of privacy; and Whether that subjective expectation is “one that society is prepared to recognize as ‘reasonable’” -6-

7. O’Connor v. Ortega 480 U.S. 709 (1987) 42 U.S.C. §1983 action challenging repeated searches of state employee’s office, desk and file cabinets Four Justice Plurality: Two-Step Test (O’Connor, Rehnquist, White and Powell) Principle: reasonable expectation of privacy in the workplace is determined on a case by case basis. Whether an expectation of privacy is reasonable, look to “operational realities” office practices, procedures and policies Employer had no established “reasonable regulation or policy discouraging employees from storing personal papers and effects in their desk or file cabinets.” 480 U.S. at 719 -7-

8. O’Connor v. Ortega 480 U.S. 709 (1987) If employee has reasonable expectation, then court must determine whether the employer’s search was reasonable at inception and whether the scope of the intrusion was reasonable. Justice Scalia’s Concurrence Rejects operational realities test. Public employees have general Fourth Amendment protections in their offices. A government employer’s search to retrieve work-related materials or to investigate violations of work rules does not violate the Fourth Amendment -8-

9. Ontario v. Quon 130 S.Ct. 2619 (2010) 1. Whether Quon had a reasonable expectation of privacy in the content of his text messages sent and received from employer’s pager utilizing a wireless service provider? Whether a workplace practice created by a supervisor regarding the texting permitting payment for overages in exchange for no auditing created a reasonable expectation or privacy despite existence of a contrary city policy? 2. Whether the City engaged in an unreasonable search when it obtained and read the transcripts of Quon’s texts while on-duty during a two month period ? Quiz: How many texts while on duty were work-related? -9-

10. Ontario v. Quon, 130 S.Ct. 2619 (2010) Unanimous Supreme Court holds that the City’s search was reasonable under Fourth Amendment Majority Decision (Kennedy, Roberts, Thomas, Ginsburg, Breyer, Alito and Sotomayor] assumes that Quon had a reasonable expectation of privacy under operational realities test. • Need for judicial caution to avoid unforeseen consequences in this area of the law. • Technological innovations may modify societal willingness to recognize the reasonableness of an employee’s expectation of privacy. -10-

11. Ontario v. Quon130 S.Ct. 2619 (2010) Majority Decision’s Dicta Regarding Application of the Operational Realities Test • Whether the practice created by Quon’s supervisor can be interpreted as changing city’s computer-use policy regarding privacy of text messages; • Whether supervisor had actual or apparent authority to make such a policy change that guaranteed the privacy of text messages; • Whether reviewing on-duty messages was justified for performance evaluations, litigation regarding the lawfulness of police actions and whether the texts are subject to applicable state open records laws. -11-

12. Ontario v. Quon, 130 S.Ct. 2619 (2010) City of Ontario Computer Use Policy: • Signed acknowledgement of receipt and understanding of the policy. No training; • Computer systems and equipment for official use only but incidental and occasional personal e-mail permitted; • E-mail use subject to monitoring without notice and “[u]sers should have no expectation of privacy or confidentiality.” • Deleted e-mail is retrievable and some e-mail may be considered an official city record; • Policy silent on texting but Quon received written and oral notice that the policy was applicable to texting on city pagers. -12-

13. Ontario v. Quon 130 S.Ct. 2619 (2010) The Reasonableness of the Search • Quon Had a Limited Reasonable Expectation of Privacy • Pager was provided for use during emergencies; • Told that texting may be subject to auditing; • Reasonable police officer should have known that on-duty communications are subject to scrutiny; • Reasonable employee would be aware that employer might need to the audit messages to determine whether the pager was being appropriately used. -13-

14. Ontario v. Quon130 S.Ct. 2619 (2010) The Reasonableness of the Search Search Justified from Inception Because of its Purpose: • To determine whether monthly contractual character limitation was sufficient; • To ensure that employees were not paying for work-related text expenses; and • To ensure that City was not paying for extensive personal communications. Scope of Search was Reasonable: • Efficient and expedient means for determining whether the overages were work-related or for personal use. • It was not excessively intrusive because City reviewed only two months worth of on-duty text messages; -14-

15. State Constitutional Decisions State v. Campbell, 759 P.2d 1040, 1044 (Or. 1988) (“reasonable expectation of privacy” is a “formula for expressing a conclusion rather than a starting point for analysis, masking the various substantive considerations that are the real bases on which Fourth Amendment searches are defined”] People v. Weaver, 909 N.E.2d 1195(N.Y. 2009)(diminished expectation of privacy while driving a car in public is sufficient to support a constitutional violation when police utilize, without a warrant, an attached GPS device to track the vehicle for a prolonged period.] State v. Jackson, 76 P.3d 217 (Wash.2003) -15-

16. Stengart v. Loving Care Agency, Inc., 990 A.2d 650 (N.J. 2010) • Private sector employee had a reasonable expectation of privacy in pre-litigation password protected webmail with her private attorney sent and received on employer’s computer. • Computer-use policy reserved to the company the right to review, intercept and access all matters on its system. • Policy stated that all e-mail, internet use, communication and computer files are not private or personal and are considered part of the company’s business records but permitted occasional personal use of its computers. • Policy silent with respect to webmail. -16-

17. Stengart v. Loving Care Agency, Inc., 990 A.2d 650 (N.J. 2010) Factors Considered in Determining that Employee Had a Reasonable Expectation of Privacy • Employee utilized password protected webmail and did not save account password on the company computer; • Company policy was silent regarding webmail and she was unaware that images from webmails were retrievable from computer hard-drive; • She was communicating with her personal attorney and did not knowingly disclose the information or fail to take reasonable steps to maintain confidentiality. -17-

18. Stengart v. Loving Care Agency, Inc., 990 A.2d 650 (N.J. 2010) Ethical Issue Court held that employer's counsel violated professional conduct rules by continuing to read the attorney-client webmail without notifying opposing counsel or seeking a court order. What are the ethical obligations of plaintiff’s counsel when emailing a client at his or her job? -18-

19. In Re Asia Global Crossing, Ltd, 322 BR 247 (S.D.N.Y 2005) Four factors for determining whether an employee has a reasonable expectation of privacy with respect to personal e- mail sent and received from an employer’s computer: • did the employer maintain a policy prohibiting personal or other objectionable use; • did the company monitor employee use of its computer and/or e-mail; • do third parties have a right to access to the computer or e-mails; and • did the employer notify the employee, or was the employee aware, of the computer use and monitoring policies. -19-

20. U.S. v. Heckenkamp, 482 F.3d 1142 (9th Cir 2007) Student had a reasonable expectation of privacy regarding content of his personal dormitory computer connected to university’s network because university policy failed to provide notice of the university’s general network monitoring program. University’s remote and warrantless search of the student’s computer was reasonable under the Fourth Amendment because university had a special need to secure one of its mail servers that had been hacked and its policy affirmatively stated that university would access networked computers when necessary to protect university’s computer system. -20-

21. Holmes v. Petrovich Development Co. 119 Cal.Rptr.3d 878 (Cal. App. 3d Dist 2011) • Pre-litigation e-mail with attorney through the employer’s e-mail system was not a confidential attorney-client communication. • Computer-use policy required computers to be utilized only for employer business and prohibited employees from using the computers to send or receive personal e-mail. • Plaintiff notified that the employer would be monitoring employee computer use and that she had no expectation of privacy in messages sent via the company’s computers. -21- -21-

22. Tortof Intrusion Upon Seclusion Restatement (Second) of Torts §652B One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person Muick v. Glenayre Electronics, 280 F.3d 741 (7th Cir. 2002) No reasonable expectation of privacy regarding material stored on employer’s laptop because employer reserved the right to inspect the laptop. -22-

23. State Law Notice Requirements Delaware: Employers are obligated to provide daily electronic notice to employees that e-mail and internet use is subject to monitoring or the employer must obtain a signed acknowledgement of receipt of employer’s monitoring policy Connecticut: In general, an employer is required to provide notice to employees prior to engaging in computer monitoring. -23-

24. Conclusion To Live Outside the Law You Must Be Honest Possible Remedies? • Legislation or regulations; • Workplace policies and training; • Collective negotiated agreements; • Technological design changes; • Personal communicative devices; • Cultural and societal changes. -24-T