Monday, March 7, 2016

Right to Privacy of Government Employees

Snooping on the San Bernardino Shooter as a Public Management Responsibility

The IPhone and San Bernardino shooter controversy has an important facet that is not as often discussed. The news has focused on the Apple’s desire to protect the privacy of its customers.  However, Sayed Farook was not an Apple Customer.  The customer was San Bernardino County.  The County gave its permission to the FBI to investigate his phone.   Does a public employer have the right to snoop in a public employee's desk, phone, computer?  Should I even call it snooping?

In some ways, public employees have more protections of their privacy than private sector employees.  The Fourth amendment gives public employees rights against unreasonable search and seizure and by extension a reasonable right to privacy.  In the case of a phone issued by San Bernardino to conduct public business, Farook, had little expectation of privacy.  The Courts balance “[public] employees’ legitimate expectations of privacy against the government’s need for supervision, control, and the efficient operation of the workplace.” (O’Connor v Ortega 1987). The phone was to be used for government business so it makes sense that the County would supervise and control the Iphone.

If you look at the government’s motion [for Apple] to comply, it is strictly about its authority under the All Writs Act to obtain compliance. Apple’s response indicates that it doesn’t support terrorists, it has complied thus far, and it needs to protect the privacy of its customers by not creating a backdoor means to open the iPhone.  The fact that the phone is owned by a government entity is not mentioned in either party's proceedings.

Although it is interesting for us to speculate whether we agree with the position of the government or with Apple, a manager needs to consider what responsibilities and rights he or she has to investigate a public employee's workplace.  I suspect that the FBI also went through Farook's work computer, work phone (land line) and desk as well as the provided cell phone. The Courts tend to favor balancing tests, is it reasonable vs an employee’s right to privacy.  Your best bet then is to consider whether the search is work related and not excessively intrusive (Quon v Ontario 2010).  Is it reasonable to search a public employee’s electronic communication? The Supreme Court said yes to search a pager and employers whether public or private have been able to investigate an employee's download habits that yield visits to porn sites.

For the government's and Apple's position, go to
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