Privacy Issues in the Community College Workplace

boss reported the incidents to the DOJ and solicited the assistance of the employee in recording the statements of the senior agent about their relationship. The court determined that the recordings did not violate Penal Code section 632, even though they were done without the consent and knowledge of one of the senior agent, because they were done at the direction of law enforcement as part of a criminal investigation. The evidence was then used as part of an administrative proceeding to terminate the senior agent. The court permitted the evidence to be used in the administrative proceeding because it had been obtained lawfully for the criminal investigation and nothing in the statute restricted how the information could be used once it was lawfully obtained.

F. C ALIFORNIA E LECTRONIC C OMMUNICATIONS P RIVACY A CT – A PPLICATION TO P UBLIC E MPLOYER ' S A BILITY TO S EARCH E MPLOYER O WNED E LECTRONIC D EVICES AND E MAILS California’s Electronic Communications Privacy Act, codified under Penal Code section 1546, et. seq., generally limits a government entity from searching or accessing information on an electronic device (e.g., smartphone, computer) or electronic information on a network (e.g., email) without a search warrant or court order. Under the Penal Code a government entity shall not do any of the following:

 Compel the production of or access to electronic communication information from a service provider.  Compel the production of or access to electronic device information from any person or entity other than the authorized possessor of the device.  Access electronic device information by means of physical interaction or electronic communication with the electronic device. 447

The legislative intent of the law appears to be aimed at law enforcement agencies conducting criminal investigations. The use of the terms "law enforcement" and "police" supports this conclusion. While this law was generally intended to address privacy concerns around law enforcement searches of electronic devices and communications, if it is determined by courts to broadly apply to government entities it may negatively affect the ability to conduct such searches of an employee's electronic devices or communications. The statute generally protects an "authorized possessor" of electronic devices, defined as "the possessor of an electronic device when that person is the owner of the device or has been authorized to possess the device by the owner of the device." (Pen. Code, § 1546(b).) (emphasis added). A government entity may only access electronic information "with the specific consent of the authorized possessor of the device." (Pen. Code, §§ 1546.1(c)(3).) (emphasis added).

Privacy Issues in the Community College Workplace ©2021 (c) Liebert Cassidy Whitmore 145