An Administrator's Guide to California Private School Law

Chapter 10 - Privacy Rights Of Students And Employees

After reviewing the legislative history and amendments to Penal Code section 502, the court held that “the Legislature did not intend that subdivision (c)(5) could only be applied to external hackers who obtain unauthorized access to a computer system.” 1765 Rather, “[i]t appears that subdivision (c)(5) may properly be applied to an employee who uses his or her authorized access to a computer system to disrupt or deny computer services to another lawful user.” 1766 The court also found that case law supported the application of section 502(c) to employees, “in appropriate circumstances.” 1767 The second is the California Privacy Act (“CPA”) 1768 which prohibits the willful attempt to learn the contents or meaning of communications in transit over a wire. 1769 As with the federal law, the California Privacy Act only applies to communications during transmission; once an individual receives the communication, the CPA no longer protects it. The consent exception to CPA goes beyond that of federal law because it requires the consent of “all parties to the communication.” The CPA makes it a crime to eavesdrop on or record any confidential communication without the consent of all participants to the communication. 1770 A confidential communication is any communication carried on in circumstances reasonably indicating that any party thereto desires the communication to be confined to the parties. The prohibition also applies to prevent any of the participants from recording any part of the communication. 1771 These sections do not apply to law enforcement agencies in the context of criminal investigations. Also, no person who was not a party to the conversation may disclose the contents of a telegraphic or telephone communication to another person without permission of the person to whom the message was addressed. 1772 The CPA was recently amended to also make it a crime for a person to intentionally disclose or distribute, in any manner, in any forum, and for any purpose, the contents of confidential communications with a health care provider that are obtained without the consent of all parties to the communication. 1773 Schools who directly employ health care providers and/or who have employees who may access confidential recordings between students and health care providers must be sure to comply with this Act. In reviewing challenges to an employer’s actions in monitoring an employee’s electronic communications, California courts determine whether the employee has “a reasonable expectation of privacy” in the electronic communication in question.

TBG Insurance Servs Co. v. Superior Court of Los Angeles County An employer dismissed an employee for violating the company's computer policy by repeatedly accessing pornographic Internet sites while at work. The employee filed a wrongful termination action against the employer. During the litigation, the employee argued that the employer did not have the right to inspect an employer-owned computer the employee had primarily used at home for personal purposes. The employee reasoned that the computer contained significant personal information, including tax information and family correspondence that was subject to his right of privacy under California’s constitution.

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 398