Cell Phone Searches by Employers

• Publication year: 2021

99 Nebraska L. Rev. 937. Cell Phone Searches by Employers

Cell Phone Searches by Employers

Marc Chase McAllister ^[*]

TABLE OF CONTENTS

I. Introduction .......................................... 938

II. Privacy Protections for Employer-Initiated Searches and Seizures .............................................. 942
A. Employees of Public Employers .................... 942
1. Step One: Determining Whether a "Search" or "Seizure" Has Occurred ........................ 943
a. Fourth Amendment Seizures ............... 943
b. Fourth Amendment Searches ............... 944
2. Step Two: Determining Whether the Search or Seizure Is "Reasonable" ........................ 947
3. Step Three: Determining the Appropriate Remedy for a Fourth Amendment Violation . . . . 951
B. Employees of Private Employers ................... 952

III. Cell Phone Searches by Public Employers ............. 953
A. Employer-Issued Cell Phones ...................... 953
B. Personal Cell Phones .............................. 956
1. Search of Personal Cell Phone by Public Employer Struck Down as Illegal .............. 959
2. Search of Personal Cell Phone by Public Employer Upheld as Lawful ................... 962

IV. Cell Phone Searches by Private Employers ............ 966
A. Employer-Issued Cell Phones ...................... 966
B. Personal Cell Phones .............................. 969

V. Proposals ............................................. 976
A. Overall Framework of Analysis .................... 976
B. Reasonable Expectations of Privacy ................ 977
1. Employer-Issued Cell Phones .................. 978
2. Personal Cell Phones .......................... 980

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C. Overall Lawfulness of Cell Phone Searches and Seizures .......................................... 981
1. Public Employer Searches and Seizures ........ 981
a. Employer-Issued Cell Phones ............... 981
b. Personal Cell Phones ....................... 982
2. Private Employer Searches and Seizures ....... 984

VI. Conclusion ............................................ 987

I. INTRODUCTION

This Article presents a framework for analyzing cell phone searches by employers. The framework proposed in this Article is structured around two primary variables: (1) whether the employee whose cell phone is searched works for a public or private employer, and (2) whether the cell phone is owned by the employer or employee.

The starting point for developing a framework for cell phone searches is the Fourth Amendment to the United States Constitution, which prohibits "unreasonable searches and seizures" by state actors, including public employers. ^[1] To be reasonable, a Fourth Amendment search or seizure must ordinarily be justified by a warrant or warrant exception. ^[2] One warrant exception of particular relevance here is the "workplace exception" established by the United States Supreme Court in O'Connor v. Ortega, which allows for certain employer-initiated searches on the basis of an employer's own determination of reasonable suspicion. ^[3] Other key Supreme Court precedents that impact employee cell phone searches include City of Ontario v. Quon, which applied the O'Connor exception to uphold an employer's review of text messages on an employer-owned device; ^[4] and Riley v. California, which established heightened privacy protections for personally-owned cell phones. ^[5]

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Regarding device ownership, in Quon an employer's warrantless search of an employer-owned device was upheld as lawful, whereas in Riley a warrantless search of a personally-owned device was deemed unlawful. ^[6] As in Quon and Riley, this distinction in ownership may impact the lawfulness of a cell phone search by an employer. ^[7] As such, this Article develops a framework of analysis that depends, in part, on this ownership-based distinction.

For searches of personally-owned cell phones by public employers, this Article argues that such devices are generally beyond the reach of the O'Connor workplace exception; therefore, they should ordinarily not be searched by a public employer without a warrant due to their unique capacity to hold immense amounts of private information. ^[8] Despite this general rule, warrantless searches of personally-owned cell phones by public employers might be lawful if an employer has implemented a clear and narrowly-defined policy authorizing such searches. This proposed exception would apply, however, only if employees have voluntarily consented to the employer's policy and the policy is justified by a legitimate business need to manage or review particular employment-related data contained within the phone.

For employer-owned devices involving public employers, this Article recognizes that employees generally have limited expectations of privacy in such devices vis-?-vis their employers, particularly where an employer's policy permits their inspection, making such devices more freely searchable by employers. Nevertheless, in cases where an employee could reasonably expect privacy in an employer-issued cell phone, this Article argues, consistent with O'Connor and Quon, that such searches must be both reasonable at the inception and reasonable in scope. ^[9] Of particular relevance under the O'Connor framework, this Article emphasizes the need for employers to properly limit the scope of their search to avoid accessing private information untethered from the specific work-related purpose for the search. ^[10]

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Turning to searches by private employers, this Article argues that the requirements for the tort of intrusion upon seclusion (tort of intrusion) provide the proper framework for analyzing searches of employee cell phones. The tort of intrusion is often used to challenge alleged privacy invasions by private employers ^[11] and typically requires a plaintiff to prove (1) the employer intentionally intruded upon the employee's solitude, seclusion, or private affairs, and (2) the employer's infringement would severely offend a reasonable person. ^[12]

Although facially distinct, the requirements for the tort of intrusion overlap with those of the Fourth Amendment, making this Article's proposed framework for private employers similar to that proposed for public employers. For example, whether as part of the first or second element of the tort, courts considering intrusion claims usually consider whether the plaintiff could reasonably expect privacy in the case at hand. ^[13] Accordingly, as under the Fourth Amendment, employees who believe their cell phones were unlawfully searched by

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their employer cannot prevail on an intrusion claim if they have no reasonable expectation of privacy in the first place. ^[14] In addition, the inquiry regarding whether an employee can reasonably expect privacy in the contents of a device is identical for both types of employment situations, and in either context, it "must be addressed on a case-by-case basis" with a particular emphasis on the most common factors relevant to cell phone searches. ^[15] Beyond this threshold issue, Fourth Amendment claims and those based on the tort of intrusion each require an invasion of an employee's reasonable expectation of privacy to such a degree as to be declared objectively unlawful. ^[16] Accordingly, for intrusion claims involving cell phone searches by private employers, many of the same Fourth Amendment considerations would apply, including (1) whether the employee had a reasonable expectation of privacy in the device and its contents, and (2) whether the search or seizure is properly limited in scope so as to avoid accessing private information untethered to the intrusion's justifications. ^[17]

Part II of this Article summarizes the law governing searches and seizures of employee cell phones by both public and private employers. Part III more closely examines cell phone searches by public employers, including a summary of recent cases involving employer-issued and personally-owned cell phones. Following a similar structure, Part IV examines recent cases involving cell phone searches by private em-

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ployers. Part V provides guidelines and proposals for cell phone searches by employers. Part VI concludes.

II. PRIVACY PROTECTIONS FOR EMPLOYER-INITIATED SEARCHES AND SEIZURES

American workers, whether employed by public or private employers, are entitled to a host of privacy protections in the workplace. ^[18] Because there is no single privacy law in America, employees may be protected from privacy invasions by various laws, including federal and state statutes, tort law, and constitutional requirements. ^[19] This Part deals specifically with the most common workplace privacy claims arising out of searches and seizures by employers. Because the law on this issue differs for public and private employers, this Part addresses each type of employer separately.

A. Employees of Public Employers

When employees of a public employer believe their privacy rights were violated, they will usually sue the employer under 42 U.S.C. § 1983, alleging a...