An Administrator's Guide to California Private School Law

Chapter 10 - Privacy Rights Of Students And Employees

user of an electronic device (such as cellular telephones, personal digital assistants) as a condition of releasing information to the employer (the subscriber). For this reason, if the employer wants to monitor communications transmitted via ECS providers, it should obtain a signed release from all employees using employer issued pagers and cellular telephones that specifically allows the ECS provider to release the communications to the employer. Crispin v. Christian Audigier, Inc. 1756

A federal district court in California held that Stored Communication Act prohibits “electronic communication service providers” from divulging, either voluntarily or in response to a subpoena, private messages communicated via social networking sites that are not readily accessible to the public. Riley v. California 1757 The United States Supreme Court unanimously found that law enforcement must generally obtain a search warrant before searching digital information contained on a cell phone seized from an arrested individual. The case applied to both smartphones and flip phones. The Court ruled that cell phones differ both quantitatively and qualitatively from the typical physical object that might be found on an arrestee during an arrest. Of particular note was the immense storage capacity of a cell phone, which permitted individuals to carry around vast quantities of sensitive personal information that they would not have been able to carry on their person separately without a cell phone. Thus, rules that previously permitted warrantless searches of physical items found incident to an arrest would not apply to cell phones. The Court also rejected the arguments of the respondents that reasons of safety and the need to prevent destruction of evidence permitted a warrantless search of the cell phone. Respondents did not offer evidence based upon actual experience that arresting officers faced harm at the time of the arrest unless they searched the cell phone without a warrant. With respect to arguments on the destruction of evidence, the Court found that steps could be easily taken prior to an arrest to remotely wipe or encrypt data and prevent officers from accessing the phone. In the event the phone was unlocked and accessible to the officer at the time of the arrest, the officers could take simple steps to prevent the phone from being remotely wiped or data encrypted, such as turning off the phone, removing its battery, or keeping the phone powered on and placed it in a Faraday bag that isolates the phone from radio waves. The Supreme Court's decision in Riley established an important privacy interest. This case will likely influence court decisions in civil cases involving discovery issues or investigations where information is sought from a personal smartphone.

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 394