Fire Law: Smartphones & Employee Privacy

Smartphones: They are at once a communications device, an address book, a photo album, a navigation system and much, much more. It’s hard to remember life without them. The U.S. Supreme Court recently wrote that smartphones “are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”

Smartphones also contain a mind-boggling array of personal information: where we’ve been, who we’ve called, personal passwords, text messages, e-mails and even credit card information. Given the role of smartphones in modern society, it is not surprising that privacy concerns abound, including concerns related to privacy in the workplace.

Is a smartphone like any other item that an employee may bring into the workplace? Most attorneys never gave that question much thought until the Supreme Court decided the case of Riley v. California last year.

Background Information

According to the Supreme Court, the Fourth Amendment requires government agents to obtain a search warrant before searching anywhere that a person has a “reasonable expectation of privacy.” While we often associate the Fourth Amendment with police searches in criminal cases, it is implicated whenever a public employer, such as a fire department, seeks to conduct workplace searches of public employees and their possessions.

Over the years, we have seen courts conclude that firefighters can have a reasonable expectation of privacy with regard to the contents of their fire station lockers, as well as what they store on department-owned computers. The deciding factor in whether a warrantless search in the workplace will be upheld often depends on whether the fire department had a policy that notified firefighters that such searches would be conducted.

Attorneys who advise fire departments universally recommend having clear policies that inform firefighters of the locations and objects that the department may search. From a managerial perspective, an employee’s expectation of privacy is shaped by such policies. Thus, a fire department can tell firefighters, “we reserve the right to look in your lockers,” and thereby extinguish any reasonable expectation of privacy that may otherwise exist.

Occasionally, a question arises about how far a fire department could constitutionally push the issue of a work-related search. Arguably, a department can go so far as to say, if you bring it into the workplace, we reserve the right to look at it. Such a policy could theoretically extend the department’s right to search  personally owned backpacks, briefcases and perhaps even vehicles brought into a fire station.

Given the heightened expectations of privacy associated with a person’s home, it is inconceivable that a fire department could require a firefighter to open his/her home to a department inspection through a “right to search” policy. Beyond being outrageously offensive, that would be pushing the fourth Amendment too far.

Enter the Riley case.

Expectations of Smartphone Privacy

Riley v. California was a criminal case involving a police department’s search of an arrestee’s cellphone. The facts in the  case are of little relevance to firefighters. What is of concern is the Supreme Court’s approach to cell/smartphones and its implications for the workplace.

Let’s consider some of the key quotes from the Supreme Court:

Cell phones differ … from other objects that might be kept on a… person. The term “cell phone” is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.

• One of the most notable distinguishing features of modern cell phones is their immense storage capacity…

• Most people cannot lug around every piece of mail they have received for the past several months, every picture they have taken, or every book or article they have read—nor would they have any reason to attempt to do so. And if they did, they would have to drag behind them a trunk…

• The current top-selling smart phone has a standard capacity of 16 gigabytes (and is available with up to 64 gigabytes). Sixteen gigabytes translates to millions of pages of text, thousands of pictures, or hundreds of videos…

• Prior to the digital age, people did not typically carry a cache of sensi­tive personal information with them as they went about their day. Now it is the person who is not carrying a cellphone, with all that it contains, who is the exception.

• In 1926, [Judge] Learned Hand observed that it is “a totally different thing to search a man’s pockets and use against him what they contain, from ransacking his house for everything which may incriminate him.” … If his pockets contain a cell phone, however, that is no longer true. Indeed, a cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form.

• Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans “the privacies of life.”

• The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.

• Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant.

The Takeaway

The Supreme Court’s startlingly clear conclusion in the Riley case is that the privacy interests associated with a smartphone exceed the privacy interests associated with one’s home. That means that a cell/smartphone being carried by an on-duty firefighter is not simply another item they may have in their pocket or that they may leave in their locker.

A firefighter has a heightened expectation of privacy in their cell/smartphone that is equivalent to—or perhaps exceeds—the expectation of privacy they have in their home. So it is a right to privacy that the fire department employer may not be able to invade through the mere adoption of a policy.

No doubt, future cases will further refine the relative rights of the fire department and the firefighter with regard to the privacy issues associated with cell and smartphones in the workplace. In the meantime, what should fire departments and firefighters alike do in light of Riley v. California? The following are my recommendations for fire departments:

1. Policies that currently authorize workplace searches of personal backpacks, briefcases and items brought into the workplace ought to be reviewed by legal counsel, with an eye toward addressing the constitutional issues associated with personal cell/smartphones as raised by the Riley case.

2. The department leadership and legal counsel should also consider applying the Riley case to other digital-age devices that may implicate similar privacy concerns, as well as its impact on department-issued devices and department-subsidized devices.

3. Workplace searches of an employee’s personal cell/smartphone must be recognized as high-risk activities that should only be conducted after consultation with legal counsel. Cell/smartphones cannot be treated like any other object in the workplace.

4. In the event that a search of a cell/smartphone becomes necessary, obtain the written consent of the employee beforehand. Do not search the device without such consent, unless advised to do so by legal counsel.

5. Limit the scope of any search to the greatest extent possible.

From the firefighter’s perspective:

1. Recognize that you have the right to say no to any request for consent to search your cell/smartphone

2. Depending on what is at stake, get union and/or legal advice as quickly as possible before making a decision.

3. Before consenting to a search, consider placing limits upon the scope of the search, and insist that these limits be agreed to in writing. For example, if the issue concerns a text message that was sent within the past 24 hours, limit the scope of the search to text messages sent within that timeframe. Prohibit any additional searches of the device for any and all other information, and if possible, obtain a written assurance that anything beyond the scope that is discovered inadvertently cannot be used for any purpose.

4. If you choose not to consent, make your refusal to consent clear without being insubordinate.

5. Do not disobey an order to turn over a cell/smartphone, but make clear your objection to the order, and your position that any warrantless search without your consent is a violation of your Fourth Amendment rights.