by Gregory A. Hearing and Brian C. Ussery
First Amendment concerns are not the only constitutional complexities presented to public sector employers in the information age. The increased access to information made possible through the advancement of technology and the emergence of social media has also influenced societal norms relating to privacy. In their renowned article, “The Right to Privacy,”1 Samuel D. Warren and Louis D. Brandeis stated that:
[i]nstantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that “what is whispered in the closet shall be proclaimed from the house-tops . . . . Of the desirability — indeed of the necessity — of some such protection, there can, it is believed, be no doubt.”
Those same sentiments ring true today as the digital records from our Internet use, emails, texts, tweets, blogs, and the like create a perpetual and permanent record of our lives and conduct. As the legislature and the courts seek to create and further define the boundaries of the law in response to the proliferation of this manner of technology and social media in our society, the same concerns voiced by Warren and Brandeis 120 years ago remain a significant motive behind their efforts.
For instance, the Electronic Communications Privacy Act (ECPA),2 was enacted by Congress “to update and to clarify federal privacy protections and standards in light of dramatic changes in new computer and telecommunications technologies.”3 More recently, the ECPA was updated to include the Stored Communications Act (SCA),4 which prohibits the intentional access of stored communications without, or in excess of, authorization. Cases interpreting the application of these statutes in the context of social media are becoming more prevalent as the court systems catch up to the use of these technologies by society and in the workplace.5 Several states have also enacted legislation aimed at protecting employee privacy rights relating to electronic communications in the workplace. Connecticut recently adopted legislation that requires employers to conspicuously post a notice that states the types of electronic monitoring being used by the employer and imposes monetary penalties for violations.6 Delaware enacted a similar law requiring employers to provide prior notice of monitoring of telephone transmissions, email, and Internet usage.7 As people are confronted with the new challenge of living and working in a world where, as one commentator has described, “every online photo, status update, Twitter post and blog entry by us and about us can be stored forever,” these new laws, specifically tailored to meet the growing need to protect against the manner of intrusion into our private lives made possible by technological advances, are defining the boundaries of employers’ responses to workplace concerns.8
In the public employment arena, however, the boundaries of employer conduct in the context of privacy are also defined by constitutional principles drafted long before the emergence of the issues presented in the modern workplace. For instance, Fla. Const. art. I, §23 provides that “[e]very natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein.” Florida courts have recognized the potential constitutional ramifications of employers delving too deeply into an employee’s private affairs. In a dissent to a well-publicized Florida Supreme Court case, City of North Miami v. Kurtz, 653 So. 2d 1025 (Fla. 1995), involving the constitutional challenge of a city regulation requiring job applicants, as precondition of employment, to sign affidavits stating that they had not used tobacco in the preceding year, Justice Kogan stated:
[I]f governmental employers can inquire too extensively into off-job-site behavior, a point eventually will be reached at which the right of privacy…clearly will be breached. An obvious example would be an inquiry into the lawful sexual behavior of job applicants in an effort to identify those with the “most desirable” lifestyles. Such an effort easily could become the pretext for a constitutional violation.9
However, as of the date of this writing, no Florida court has specifically addressed the application of these constitutional rights in the rapidly evolving modern workplace.
The federal law has been equally slow to develop. The Fourth Amendment to the U.S. Constitution provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated ….” This amendment has been interpreted to guarantee a person’s privacy, dignity, and security against the government employer’s arbitrary and invasive acts. As technology and social media have become more prevalent, so have the questions concerning the role of the Fourth Amendment in the modern workplace. Can there be a reasonable expectation of privacy in social media which, by design, was created to disseminate information to the masses? At what point is an individual’s right and interest in maintaining a “private” self outweighed by an employer’s interest in monitoring the workplace? In terms analogous to the Kurtz decision above, could a public employer require, as a precondition of employment, that employees disclose user name and password information of frequented social media sites so that the employer could monitor employee conduct for the enforcement of workplace policies relating to legitimate concerns, such as performance, wage and overtime compliance, or harassment?
Practical guidance on these legal issues has been hard to come by — an issue no doubt compounded by the fact that technology’s impact on the workplace tends to progress at a more rapid pace than our judicial system’s ability to resolve the issues created by it. In fact, the last significant U.S. Supreme Court decision examining the constitutional right to privacy in the public employment arena was issued nearly 25 years ago in O’Connor v. Ortega, 480 U.S. 709 (1987), in which a four-justice plurality set forth the applicable analytical framework for Fourth Amendment claims against government employers. In that case, the court determined that “some government offices may be so open to fellow employees or the public that no expectation of privacy is reasonable.” As a result, a court must first consider, on a case-by-case basis, whether the “operational realities” existing in the workplace foster a reasonable expectation of privacy for the purpose of implicating an employee’s Fourth Amendment rights. If a reasonable expectation exists, an employer’s intrusion on that expectation “for noninvestigatory, work-related purposes” or for “work-related misconduct” should be judged by the standard of reasonableness under all the circumstances.10
Since the O’Connor decision, the Fourth Amendment’s application in the public workplace has generally been unsettled due to the vague analysis imposed under the “operational realities” inquiry, which Justice Scalia recently called “standardless and unsupported.” Additionally, the case-specific treatment of Fourth Amendment workplace claims has compounded the unsettled nature of this area of the law due to the inevitable factual distinctions that exist from case to case and workplace to workplace. In essence, when confronted with the issue of the scope and application of the Fourth Amendment in the public work place, the answer under the O’Connor operational realities analysis is “it depends.” The application of these standards in the modern workplace is particularly challenging when advances in technology and the ever-expanding use of social media are posing new and unique issues for employers at a rapid rate.
The U.S. Supreme Court recently had the opportunity to revisit the constitutional right to privacy in the public employment arena in City of Ontario, California v. Quon, 130 S. Ct. 2619 (2010). The plaintiff,11 a city police officer, brought a cause of action under 42 U.S.C. §1983, alleging the city violated his Fourth Amendment right to privacy by obtaining and reviewing transcripts of the personal text messages he sent using a pager provided to him by the city for work-related purposes. The city obtained the text transcripts after it determined that the plaintiff had, on several occasions, exceeded the monthly allotted character limits, and examined the transcript for the noninvestigatory work purpose of determining whether the character limit provided in the city’s wireless pager contract was sufficient to meet the city’s legitimate business needs. A review of the transcripts by internal affairs revealed that only a minute portion of the plaintiff’s texts were work-related and revealed an inordinate number of personal texts, some of which were sexually explicit. The plaintiff was disciplined as a result of his excessive and inappropriate pager use.12 The issue confronting the Court was whether the plaintiff’s Fourth Amendment right to privacy prohibited the city’s search of his personal text messages sent on an employer-provided communications device.13
The Court’s decision was highly anticipated, not only because it afforded the Court the first significant opportunity to clarify the analytical framework applicable to Fourth Amendment claims against government employers, but also because it was expected to provide the first glimpse of the Court’s treatment of constitutional privacy in the technological workplace. Unfortunately, the Supreme Court failed to answer the bell on either issue.
The Court acknowledged the unsettled nature of the O’Connor plurality’s approach under the operational realities analysis and recognized the alternative approaches discussed most notably in Justice Scalia’s dissent in that same case.14 It determined that further discussion and clarification of the operational realities analysis was unnecessary since the city’s search of the plaintiff’s text transcripts was justified upon “reasonable grounds for suspecting the search was necessary for a non-investigatory work purpose.”15 According to the Court, the city “had a legitimate interest in ensuring that employees were not being forced to pay out of their own pockets for work-related expenses, or on the other hand that the city was not paying for extensive personal communications.”16
In bypassing its opportunity to address operational realities analysis, the Court also failed to address the underlying issue concerning the impact of technology on workplace privacy. The Court stated, in pertinent part:
The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear . . . . 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. Even if the Court were certain that the O’Connor plurality’s approach were the right one, the Court would have difficulty predicting how employees’ privacy expectations will be shaped by those changes or the degree to which society will be prepared to recognize those expectations as reasonable. Cell phone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self-identification. That might strengthen the case for an expectation of privacy. On the other hand, the ubiquity of those devices has made them generally affordable, so one could counter that employees who need cell phones or similar devices for personal matters can purchase and pay for their own. And employer policies concerning communications will of course shape the reasonable expectations of their employees, especially to the extent that such policies are clearly communicated.
A broad holding concerning employees’ privacy expectations vis-à-vis employer-provided technological equipment might have implications for future cases that cannot be predicted. It is preferable to dispose of this case on narrower grounds.17
In the words of Warren and Brandeis:
That the individual shall have full protection in person and in property is a principle as old as the common law; but it has been found necessary from time to time to define anew the exact nature and extent of such protection. Political, social, and economic changes entail the recognition of new rights, and the [law], in its eternal youth, grows to meet the demands of society.18
In choosing not to address these evolving issues, the Supreme Court stalled, hopefully only briefly, the growth necessary for the law to fully and objectively meet the constitutional demands in the modern public workplace. In a dissenting opinion, Justice Scalia voiced critical sentiments that are likely echoed by many public employers when he opined that “[a]pplying the [Constitution] to new technology may sometimes be difficult, but when it is necessary to decide a case we have no choice . . . . The-times-they-are-a-changin’ is a feeble excuse for disregard of duty.”19
Whether deemed a disregard of duty or cautious treatment of a complex legal issue, the Supreme Court’s decision in Quon emphasizes the reality that public employers are finding with ever-increasing frequency: The expanding use of technology and the advent of social media pose difficult and evolving constitutional issues in the public workplace. Justice Scalia’s critical response to the Supreme Court’s inaction, however, applies equally to employers faced with these growing challenges. Just because the workplace is evolving does not mean that employers can disregard the duties existing therein. Employers must face these challenges with the tools they have been given and maintain vigilance as the law develops, whether quickly or slowly, to meet these new demands. The-times-they-are-a-changin’, and the way employees, employers, the courts, and the legislature view the workplace must change, too.
1 Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4th Harvard L. Rev. 193 (1890).
2 18 U.S.C.A. §2510.
3 132 Cong. Rec. S. 14441 (1986).
4 18 U.S.C. §§2701-2712.
5 See, e.g., Lukowski v. County of Seneca, 2009 WL 467075 (W.D.N.Y. 2009) (interpreting the application of the ECPA and SCA to prohibit county from compelling the disclosure by website chat room provider of user email addresses and other personally identifiable information for the purpose of identifying citizens responsible for posts that were critical of county government officials); Pietrylo v. Hillstone Restaurant Group, 2008 WL 6085437 (Dist. N.J. 2008) (permitting employee SCA claim to proceed to trial on issue of whether employer obtained proper authorization to access stored communications contained on private employee MySpace accounts when it obtained usernames and passwords from employee under apparent threat of adverse employment action).
6 Conn. Gen. Stat. §31-48d.
7 Del. Code Tit. 19, §705.
8 Jeffrey Rosen, The Web Means the End of Forgetting, N.Y. Times, July 21, 2010.
9 Kurtz, 653 So. 2d at 1029.
10 O’Connor, 480 U.S. at 725-726.
11 The plaintiff was joined in the action by other individuals with whom he exchanged text messages, including his then-wife, another city police department employee with whom he was romantically involved, and another member of the police department. The claims brought by these individuals were examined under the same standards.
12 Quon, 130 S. Ct. at 2625-2627.
13 Id. at 2627.
14 O’Connor, 480 U.S. at 732. Recognizing the need for more objective legal standards, Justice Scalia urged the Court to adopt a more streamlined approach when, as a general matter, a public employee enjoys a reasonable expectation of privacy under the Fourth Amendment that is not violated when the government employer engages in the manner of search “regarded as reasonable and normal in the private-employer context” to retrieve work-related materials or to investigate violations of workplace rules.
15 Quon, 130 S. Ct. at 2628.
16 Id. at 2631.
17 Id. at 2629-2630.
18 Warren & Brandeis, The Right to Privacy, 4th Harvard L. Rev. at 193 (1890).
19 Quon, 130 S. Ct. at 2635.
Gregory A. Hearing is the managing partner with the management labor and employment law firm of Thompson, Sizemore, Gonzalez & Hearing, P.A. He has practiced management labor and employment law for his entire career. He received his law degree from the Florida State University College of Law, cum laude, in 1989. He is board certified in labor and employment law by The Florida Bar and serves as chair of the Labor and Employment Law Section.
Brian C. Ussery is the owner and founder of The Law Office of Brian C. Ussery, LLC, where he assists companies in all areas of labor and employment law, including the management of human resources and other aspects of the employment relationship, the management of relationships with both public and private sector labor organizations, and the development of sound personnel policies, practices, and training programs. He received his undergraduate degree from the University of Tampa in 1996, and his law degree from the Florida State University College of Law in 2001.
This column is submitted on behalf of the Labor and Employment Law Section, Gregory A. Hearing, chair, and Frank E. Brown, editor.