CAS Legal Mailbag ' 12/1/22

• Published date: 06 December 2022
• Subject Matter: Consumer Protection, Government, Public Sector, Privacy, Privacy Protection, Constitutional & Administrative Law, Education
• Law Firm: Shipman & Goodwin LLP
• Author: Mr Thomas B. Mooney

Originally appeared in the CAS Weekly Newsletter

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Dear Legal Mailbag:

Last week, one of the teachers in my school told me that another teacher may be harassing a female colleague by email. The teacher making this report did not have many details, and it all seemed rather speculative to me. When I pressed her about her suspicions, she started to equivocate. She told me that she has a "hunch" about this, and that the "victim" acts like an abused spouse when the alleged perpetrator is present, but she admitted that she did not have any hard evidence.

I told the teacher that I couldn't do anything on such limited information. The teacher told me that she understands, and she promised to keep her eyes open for more concrete evidence. But this teacher's report got me thinking. We all have to sign off on the Acceptable Use Policy, and that Policy expressly warns users that they should have no expectation of privacy and that Administration reserves the right to access the personal emails of users, with and without cause.

The alleged perpetrator must have signed off on the Acceptable Use Policy, waiving any privacy claims that he may otherwise have had. Under these circumstances, does Legal Mailbag agree that I can poke around in the email of the alleged perpetrator and see what I can find? With the holiday break coming up, I will have some free time, and it might even be interesting.

Signed,
Fishing Expedition

Dear Fishing:

Legal Mailbag suggests that you find some other use for any free time you may have. The scope of privacy expectations continue to evolve, but your plan to "poke around" a teacher's email is a bad one.

We must start with the premise that your searching through the teacher's email is a "search" for purposes of the Fourth Amendment, which protects us all from unreasonable searches and seizures on behalf of the government (and you are considered the government for this purpose). The United States Supreme Court has held that a public employer may search the person and effects of a public employee as long as two conditions are met. First, the employer must have reasonable (as opposed to probable) cause to suspect that the search will turn up evidence that the law or work rules have been violated. Second, the scope of the search must be reasonably related to the purpose of the search and must not be excessively intrusive. O'Connor v. Ortega, 480 U.S. 709 (1987). These standards may sound familiar, and they should, because they are...