Privacy Issues in the Community College Workplace

The Penal Code does not state that a government entity is prohibited from searching for electronic information on its own network or email system. Rather, the statute provides that a search to "compel the production of or access to electronic communication information from a service provider" can only occur with a warrant or court order. Therefore, the statutory language does not appear to apply to searches of an internal network or email system maintained by the government entity itself. Interpreting the statute's restrictions otherwise would mean that a government entity that maintains its own network and email system needs a warrant or court order to search its own network and email system. We do not believe that is reasonable, nor what the Legislature intended through the passage of SB 178. Importantly, the statutory language does limit a government entity from searching an employee's personal electronic device and personal electronic information maintained by a service provider (e.g., personal email account such as Gmail or Yahoo). This is because when it comes to such electronic devices, the government entity is not the owner or the "authorized possessor" of the device. In the case of an employee's personally owned cell phone, the employee is the owner and/or "authorized possessor" of the cell phone and would either have to give permission to a government entity to search the device or the government entity would have to get a search warrant/court order to conduct such a search of the device. The same result would also most likely apply for searches of other electronic information provided by an outside service provider. To the extent that a government entity does not directly control an employee's electronic information that is being sought, the government entity would need to get permission from the employee to search it or otherwise get a warrant or court order to compel a third party service provider to disclose such information.

Here are a few best practices public employers can follow:

LCW Practice Advisor

Review and revise electronic communications policies to limit an employee's expectations of privacy in the use of government-owned electronic devices and the use of work email maintained by the governmental entity; Reinforce that a public employee's authorization to use a government-owned electronic device is at the sole discretion of the government entity and can be modified or revoked at any time, that such electronic devices are subject to search, and an employee is obligated to surrender the electronic device back to the government entity at any time; and Seek legal counsel before compelling a public employee to allow a search of their personally owned electronic devices or of personal electronic information that is maintained by an outside service provider and not directly controlled by the government entity.

Privacy Issues in the Community College Workplace ©2019 (c) Liebert Cassidy Whitmore 140