If you're interested in the intersection between police searches, library employee political speech, political patronage, patron privacy, read on.
This case has it all - claims that library staff campaigned against a mayor using library equipment, a police raid in the library, and an 80 page court decision sorting it all out.
Amidst a slew of plaintiffs, defendants and issues are claims against the mayor and the police by a former library director, a library systems administrator, and an independent contractor to the library.
On April 20, 2004, a police detective and computer expert went to the library during open hours without a warrant. They searched the library system administrator's computer for 90 minutes after the administrator provided them with his password. They then searched a library contractor's email account, apparently ordering him to provide his Yahoo password or face arrest.
Did the police have the right to search these computers? The court engaged in very different legal analyses for the men. For the director and the system administrator, both employees, the court ruled that there was no reasonable expectation of privacy in their work emails and stored documents.
The independent contractor, however, said he had used the library computers with a Yahoo account as a patron. The court said this was a private email account, not a workplace account. The library contractor did have a reasonable expectation of privacy in his Yahoo account. Did he voluntarily consent to the search? That was left for a jury to decide.
Voluntary consent is a thorny issue. The court mentioned that that the director gave voluntary consent to search his computer since he gave the police his password. More on that below.
Political patronage
Additionally, the police chief, the library director and the systems administrator claimed they lost their jobs because they didn't support the mayor's candidacy. This could be a violation of the First Amendment's guarantee of freedom of association.
Of course, it's not a simple analysis. The court noted that "replacing key personnel from a former administration with campaign supporters and other politically-loyal allies of a newly-elected official is a time-honored political practice." The circuit has a well developed legal test to determine when it is permissible, under the First Amendment, to require a certain political affiliation in a top public employee.
The key factor boiled down to whether the position was "policy making" with influence over programs and policy initiatives. The chief of police was a policy maker, so it was okay for the mayor to replace him with a political appointment (unless other factors like a merit personnel system were violated).
There was no evidence, however, that the systems administrator had a policy making position. This actually helped him, as that means it's not okay to terminate him based on his political affiliation. A jury needs to decide if he was terminated because of his politics.
As for the library director, the court didn't need to reach that issue, since it determined that his resignation was voluntary. More on this below.
Wilson v. Moreau, 2006 U.S. Dist. LEXIS 55310 (August 4, 2006).
Minow comments: This case is a clear example of the difference between employee and patron privacy. I don't understand why the library confidentiality law was not cited (see post continuation), but actually it's much better that the court found patron privacy directly in the Fourth Amendment. I hope someone writes an article on it. Even if library employees were improperly using library equipment for campaign purposes, that would be a city rules violation, not a criminal offense. (I'm not saying there was improper use - this is apparently still in dispute. Some campaign materials were found on the library computers, yet the library employee said he had only worked on the campaign at home.) Lesson to everyone: keep your political campaign work off the library computer. If you work on it during a break, use your Yahoo account and a public computer.
As for the library director's "voluntary" resignation - it seems to me that this should have gone to a jury. The director said in his affidavit:
He [Moreau] immediately began to harass members of my staff and me. It seemed that he was obsessed with possibility that library staff members had politically supported his opponent. Finally, unable to continue to bear Mr. Moreau's harassment I told the City Council at a meeting on April 12 that I was stepping down from my position as library director and that my last day would be April 30.
Also, about that consent - I find the director's affidavit showing something other than a pure voluntary permission to police to search his computer. His affidavit says:
. . . I reluctantly stated that the police officers could have access to the computers but I meant this as my decision not to resist the search.
The court cited a 1993 First Circuit opinion which found voluntary consent even after seven or eight law enforcement officers, with guns drawn, entered the home, arrested and handcuffed the defendant. United States v. Barnett, 989 F.2d 546, 555 (1st Cir. 1993). I don't even feel a need to comment on the absurdity of this.
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Update Aug. 14 - Ann Bartow, in Anyone Who Blogs From Work Needs to Read This, points to an Orin Kerr post about a new Ninth Circuit opinion on workplace privacy, United States v. Zeigler. Orin discusses the difference between the public workplace (public library employees fit in here) and the private workplace (corporate and other private library employees fit in there)... which he indicates were mostly obliterated in the decision. See http://www.orinkerr.com/2006/08/09/ninth-circuit-mostly-eliminates-private-sector-workplace-privacy-rights-in-computers/
Wilson v. Moreau, 2006 U.S. Dist. LEXIS 55310 (August 4, 2006) is online at http://www.rid.uscourts.gov/Opinions/Recent/08032006_1-03CV0575L_WILSON_V_MOREAU_P.pdf
Rhode Island library confidentiality law via Paul Neuhaus:
Rhode Island General Laws
Section 38-2-2. Definitions.
As used in this chapter:
(1) "Agency" or "public body" shall mean any executive, legislative, judicial, regulatory, or administrative body of the state, or any political subdivision thereof; including, but not limited to, any department, division, agency, commission, board, office, bureau, authority, any school, fire, or water district, or other agency of Rhode Island state or local government which exercises governmental functions, any authority as defined in § 42-35-1(b), or any other public or private agency, person, partnership, corporation, or business entity acting on behalf of and/or in place of any public agency.
(2) "Chief administrative officer" means the highest authority of the public body as defined in subsection (a) of this section.
(3) "Public business" means any matter over which the public body has supervision, control, jurisdiction, or advisory power.
(4) (i) "Public record" or "public records" shall mean all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, magnetic or other tapes, electronic data processing records, computer stored data (including electronic mail messages, except specifically for any electronic mail messages of or to elected officials with or relating to those they represent and correspondence of or to elected officials in their official capacities) or other material regardless of physical form or characteristics made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency. For the purposes of this chapter, the following records shall not be deemed public:
.....
(U) Library records which by themselves or when examined with other public records, would reveal the identity of the library user requesting, checking out, or using any library materials.
(ii) However, any reasonably segregable portion of a public record excluded by this section shall be available for public inspections after the deletion of the information which is the basis of the exclusion, if disclosure of the segregable portion does not violate the intent of this section.
(5) "Supervisor of the regulatory body" means the chief or head of a section having enforcement responsibility for a particular statute or set of rules and regulations within a regulatory agency.
(6) "Prevailing plaintiff" means and shall include those persons and entities deemed prevailing parties pursuant to 42 U.S.C. § 1988.
Public Sector
Two provisions of the Fourth Amendment to the U.S. Constitution limit government action and protect citizens’ privacy rights. This includes citizens when they are government or public-sector employees. Those provisions are extended to state and local governments through the 14th Amendment. This constitutional right to privacy does not apply to employees in the private sector. When does the government as the employer have the right to search an employee, employee’s property, possessions or workspace without violating the employee’s reasonable expectation of privacy under the Fourth Amendment? It depends upon the facts, circumstances and answers provided to the questions in the above paragraph.
In O’Conner v. Ortega, the U.S. Supreme Court ruled that the very nature of a public employee’s position allows some intrusions into privacy that would not otherwise be tolerated by the Fourth Amendment. In that case, state hospital managers placed a physician on administrative leave pending an investigation of alleged improprieties. During the investigation, the managers searched and obtained certain evidence from the physician’s desk and filing cabinets that was used as a basis for his subsequent discharge. The Court upheld the search because it was based on a reasonable suspicion that the search would turn up evidence that the employee was guilty of work-related misconduct. The search of an employee's property, such as an employee’s briefcase, purse or wallet, is given closer scrutiny and will generally require a warrant prior to search. Some courts, however, have upheld such searches as in the case of an employee who was suspected of concealing child pornography in a storage unit in her office, which she had purchased at her own expense and for which only she had the key.
Private Sector
Private employers have more leeway in conducting searches, although there are still privacy considerations under common law as well as some state laws that have created workplace privacy rights. A number of states have passed legislation granting specific privacy rights to employees and placing obligations upon employers, especially with regard to electronic monitoring. So when may a private employer properly conduct a workplace search? A key to answering this question is closely tied to the issue of whether the employee had a reasonable expectation of privacy in the item that was searched and the employer’s legitimate, business reason for conducting the search. For example, take the case of an employee who is provided with a locker at work. The employee is permitted to use his or her own lock and is not required to provide the combination to that lock to his or her employer. There is no policy regarding searches. Does the employer violate the employee’s privacy when it breaks the lock and searches the employee’s locker without his or her consent? One Texas jury answered “Yes” to the tune of a $108,000 award to the employee.
In addition, private employers need to safeguard against common law claims, including invasion of privacy, unreasonable intrusion upon the seclusion of another, unreasonable disclosure of personal facts, false light publicity, seclusion, outrageous conduct, intentional infliction of emotional distress and more. Managers and supervisors should be reminded not to disclose personal employee information to staff and co-workers, even with the best of intentions. Take the case of employees who asked about their co-worker who had been absent for some time. In response to their concern, the supervisor disclosed that the employee had a mastectomy. The employees then took up a collection and sent flowers and a get-well card to the employee’s home. When the employee received the flowers, she was mortified that the supervisor had disclosed such personal information to her co-workers. She subsequently sued and won.
Posted by: Sasha | September 29, 2006 at 08:25 PM