Privacy Issues in the Community College Workplace

D. A PPLICABLE F EDERAL L AW

1. R EASONABLE E XPECTATION OF P RIVACY S TANDARD A PPLIES The United States Supreme Court has determined that what a person seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected under the Fourth Amendment’s guarantee of freedom against unreasonable searches and seizures. In Katz v. United States, the court found the government’s procedures constitutionally invalid when a telephone conversation was monitored by an electronic surveillance device attached to the outside of a public telephone booth where the defendant was prone to place interstate wagers from a particular telephone booth.406 The court concluded the Fourth Amendment “protects people, not places.” The Fourth Amendment is now held primarily to protect “reasonable expectations” of privacy, including, as in Katz, conversations originating from a public telephone booth. The question of whether an employee had a reasonable expectation of privacy in the workplace is resolved by examining whether the individual challenging the alleged intrusion had a subjective expectation of privacy which was objectively reasonable. If such an expectation is established, the inquiry then moves to the remaining issues raised by the Fourth Amendment. FN United States v. Long (2006) 64 M.J. 57. In Haynes v. Office of the Attorney General Phill Kline, 407 Plaintiff was terminated from the position of assistant attorney general and sued the state Attorney General’s Office and several co-workers seeking damages and injunctive relief from accessing his private files on his work computer contrary to his Fourth and Fourteenth Amendment rights and in violation of federal law. The District Court held that the plaintiff sufficiently alleged he had a subjective expectation of privacy in private files stored on his work computer, and that the expectation was objectively reasonable under the Fourth Amendment, so as to show likelihood of success on the merits in his claim for a preliminary injunction precluding his former employer from accessing, copying, reading, reproducing, disseminating, or otherwise searching his private files and e-mail communications. According to the United States Supreme Court in O’Connor v. Ortega , work-related intrusions by public employers may be justified by the governmental interest in the efficient and proper operation of the workplace. 408 With respect to investigations of work-related misconduct, the O’Connor Court stated that:

Public employees’ expectations of privacy in their offices, desks, and file cabinets, like similar expectations of employees in the private sector, may be reduced by virtue of actual office practice and procedures, or by legitimate regulation. . . . Public employers have an interest in ensuring that their agencies operate in an effective and efficient manner, and the work of these agencies inevitably suffers from the inefficiency,

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