Email, Privacy, and Law Enforcement

1. “Because of the rapid advancement of technology during the twentieth century, what once has been viewed as science fiction has become a circumstance of everyday life. The proliferation of the new technology has demanded rapid legislative and judicial responses to resolve legal problems of the emerging technology.” Jeffrey A. Helewitz Email, Privacy, and Law Enforcement

2. Instructor: Barry Krischer, State Attorney - Palm Beach County – Retired P.B.S.O. Legal Dept. Volunteer KrischerB@pbso.org LegalEagleServices.net

3. You answer to two masters… As a law enforcement officer you must obey Florida Statute at the same time as Department S.O.P.

4. Email Rule #1: • You have no personal life. • You are on-duty 24/7. • Everything you do will be viewed within context of a LEO.

5. Email • Facebook, Twitter, My space, You Tube are all useful tools. But like any tool – Taser or firearm – they can be abused. • Use them responsibly and in accord with department policy and community standards and morals.

6. Be Responsible On-Line Email “Be careful what you post on Facebook. Whatever you do. It will be pulled up again later somewhere in your life.” President Barak Obama addressing students, September, 2009.

7. 1. Can personal and professional business ever be separate? 2. Do you have a right to privacy? Email Legal Questions

8. Email Privacy? No!

9. Privacy? No! Boca Raton Police Department, General Order 13.966 4. NO EXPECTATION OF PRIVACY: • a. Employees shall have no expectation of privacy when using Department authorized or provided communications or computer systems. • b. Passwords assigned to or used by employees do not create an expectation of privacy for the employee, but are used solely to prevent access by unauthorized persons. • d. An employee’s continued employment constitutes a waiver, by the employee, of any claims for infringement of privacy by the Department.

10. Supreme Court of Florida State of Florida v. City of Clearwater Times Publishing Company v. City of Clearwater Can personal and professional business ever be separate?

11. Florida Constitution Article I – Declaration of Rights Section 24.  Access to public records and meetings.-- (a)  Every person has the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf, except with respect to records exempted pursuant to this section or specifically made confidential by this Constitution.

12. “Public Records” shall mean all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings or other material, regardless of physical form or characteristics, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency. Thus, electronic documents stored in a computer can be public records provided they are “made or received pursuant to law or ordinance or in connection with the transaction of official business.” State v. City of Clearwater Public Records, F.S. 119.011(1)

13. “Just as an agency cannot circumvent the Public Records Act by allowing a private entity to maintain physical custody of documents that fall within the definition of ‘public records,’ private documents cannot be deemed public records solely by virtue of their placement on an agency-owned computer. The determining factor is the nature of the record, not its physical location.” State v. City of Clearwater

14. State v. City of Clearwater “Moreover, we agree that the City’s ‘Computer Resources Use Policy,’ which states that the City's computer resources are the property of the City and that users have no expectation of privacy, cannot be construed as expanding the constitutional or statutory definition of public records to include personal documents.”

15. Electronic Mail Communications Sec. 668.6076, F.S. requires a government agency, that is subject to the Public Records laws pursuant to Chapter 119, F.S., that operates a website and uses electronic mail must post the following statement in a conspicuous location on its website: “Under Florida law, e-mail addresses are public records. If you do not want your e-mail address released in response to a public records request, do not send electronic mail to this entity. Instead, contact this office by phone or in writing.”

16. Retention Period for E-Mail There is no single retention period that applies to all electronic messages. Retention periods are determined by the content, nature, and purpose of the record and are set based on their legal, fiscal, administrative, and historical values, regardless of the format in which they reside or the method by which they are transmitted. General Records Schedule GS1-SL for State and Local Governments

17. Transitory Messages These are records that are created primarily to communicate information of short-term value, based upon the content and purpose of the message not the format or technology used to transmit it. Includes reminders about scheduled meetings, telephone messages, announcement of office events, lectures, or workshops. Retain until obsolete, superseded, or administration value is lost.

18. Texting Privacy The U.S. Supreme Court reviewed an officer’s expectation of privacy in his text messages using a department alpha-numeric pager: City of Ontario, CA v. Quon

19. Texting Privacy City of Ontario, CA v. Quon “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.” U.S. Supreme Court (June 17, 2010)

20. Texting Privacy City of Ontario, CA v. Quon “A government employer’s warrantless search in connection with an investigation of work-related misconduct is reasonable if it is justified at its inception, and if the measures adopted are reasonably related to the objectives of the search, and not excessively intrusive in light of the circumstances giving rise to the search.” U.S. Supreme Court (June 17, 2010)

21. Texting Privacy City of Ontario, CA v. Quon “Even if he could assume some level of privacy would inhere in his messages, it would not have been reasonable for Quon to conclude that his messages were in all circumstances immune from scrutiny. Quon was told that his messages were subject to auditing. As a law enforcement officer, he would or should have known that his actions were likely to come under legal scrutiny, and that this might entail an analysis of his on-the-job communications.”

22. Texting Privacy In that the Florida Supreme Court’s ruling in Times Publishing v. City of Clearwater, (pertaining to privacy of government e-mail), was premised on Florida’s Public Records Law as contained within Florida Constitution and statute, the U.S. Supreme Court’s opinion in Quon will not impact that opinion.

23. Email In a Massachusetts class-action suit over the dangers of the diet drug combination Phen-Fen, the court allowed this email from a company executive to be admitted in evidence: “Do I have to look forward to spending my waning years writing checks to fat people worried about a silly lung problem?”

24. Email Chevron settled a lawsuit for 2.2 million that involved an inter-office email entitled: “25 Reasons Why Beer is Better Than Women”

25. Email

26. Baker came under fire over the weekend for an e-mail he sent late last week that compared first lady Michelle Obama to a chimpanzee. Baker has since apologized for the e-mail, which he said he previously received and forwarded to a small number of people as “political humor.”

27. Email Rule #2 You are not responsible nor held accountable for crude jokes you receive in your email in-box. You are responsible, and you own, the emails you forward.

28. Electronic Communications Privacy Act The ECPA makes it a federal crime for an individual to intentionally or willfully intercept, access, disclose, or use another’s wire, oral, or electronic communication. Applies equally to telephone and email communications. There are three exceptions to ECPA: 1. provider exception; 2. legitimate business exception; 3. consent exception. Most recently Homeland Security.

29. “A 15 year veteran of the Columbus, Ohio PD triggered a citywide uproar. The cop and her sister uploaded offensive videos on You Tube and their personal website. The veteran cop did not appear in uniform and did not identify herself as a cop. The videos now provide strong fodder for defense attorneys in cases involving the veteran police officer.” Source: Theodore Decker, “Bigoted Videos Investigated,” Columbus Dispatch, August 29, 2007 Crime scene photos on cell phone - Don’t!

30. Recording of Official Sheriff’s Office Business INTER-OFFICE MEMORANDUM TO: All Employees DATE: April 9, 2010 FROM: Sheriff Ric Bradshaw FILE: SO 0410-1 SUBJECT: Special Order 0410-1 Recording of Official Sheriff’s Office Business Employees are prohibited from utilizing any camera, cellular phone or other electronic device to make video, audio, digital, photographic or any other type of recording of official Sheriff’s Office business while on or off duty, or while representing the Sheriff’s Office in an official capacity, or within any facility of the Sheriff’s Office, except as specifically authorized pursuant to Sheriff’s Office policy and procedure.  

31. Facebook smarts “An elite unit of the Israeli army had to scuttle plans for a West Bank raid after a soldier posted a Facebook status that detailed the unit’s plans.” The IDF issued a nasty letter warning soldiers that “enemy intelligence scans the internet for…information that could sabotage operations and endanger our forces.”

32. Facebook smarts You have no personal life!

33. Opinion Blogs Susan L. Purtee’s off-duty opinions collided with her on-duty career as a Columbus police officer yesterday, when city leaders from the mayor down denounced the views she posted online about Jews, blacks and immigrants. Purtee, a 15-year veteran, will be taken off the street while internal affairs investigates. You have no personal life!

34. Opinion Blogs Defamation Law: • Any false statement of fact • That may damage the image or reputation of an individual, or entity (like your agency) • That is published (oral = slander; written = libel) • With fault: • Private person fault is negligence • Public figure fault is actual malice

35. Who Is This Man?

36. Kwame Kilpatrick Former Mayor of Detroit, Michigan

37. 14,000 Text Messages In trial, Kilpatrick claimed, “He was not fired. My understanding is he could go back to Lieutenant…but I think he chose to retire.” Beatty: “I’m sorry that we are going through this mess because of a decision that we made to FIRE Gary Brown. I will make sure the next decision is much more thought out. Not regretting what was done at all. But thinking about how we can do things smarter.”

38. Sexting photograph of a man’s underpants to a 21-year-old female college student in Seattle. He quickly deletes it and sends out a Tweets saying that his Facebook account was hacked. 3 weeks he resigned. May 27, 2001: Rep. Anthony Weiner uses his Twitter account to send a waist-down

39. Be Responsible On-Line! The End of Forgetting It’s not just that the Web and social networking threaten your privacy. It’s that there is no way in the digital age to move on, to start over – to erase your posted past. N.Y. Times, July 25, 2010

40. Internet Postings Are Forever Refrain from posting things on-line that you will regret later. The odds are good that someone, someday, will stumble across it, and it may come back to haunt you – especially if you are planning to run for public office. Rule #3

41. Sources of Electronic Evidence Home Work Car Third Parties Electronic Media Sources Email IM Texting Blogs Documents Flashdrive Laptop Hard-drive Blackberry Cell phone

42. Sources of Electronic Evidence

43. Sources of Electronic Evidence Home Work Car Third Parties Electronic Media Sources Email IM Texting Blogs Documents Flashdrive Laptop Hard-drive Blackberry Cell phone

44. Discovery Rules • Rule 1.280 provides: “Parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action.” • Rule 1.350 provides: “Any party may request any other party to…inspect, copy, test, or sample any tangible things that constitute matters within the scope of Discovery Rule 1.280.”

45. Sources of Electronic Evidence Home Work Car Third Parties Electronic Media Sources Email IM Texting Blogs Documents Flashdrive Laptop Hard-drive Blackberry Cell phone

46. What We Can Learn • Electronic media shows real time movement • Text messages/Twitter/Email is date and time stamped • IP address is recorded • Electronic media crosses state and national boundaries…what may not be offensive in Florida may be offensive in Mississippi or Iran • “Honest services” federal prosecution under 18 USC 1343 (20 year felony)

47. Email