Can They Really Do This?

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Latest post Sun, Feb 26 2017 6:00 PM by Drew. 5 replies.
  • Sun, Feb 26 2017 10:55 AM

    Can They Really Do This?

    There was a news story this morning about a top ranking Federal official who called his staff into a meeting to discuss news leaks.  According to the news report, whose accuracy I do not know, but have no reason to disbelieve at the moment, before entering the meeting all staff members were required to turn over their cell phones, both government issued and private, so they could be examined to try to determine the source of the leaks.

     

    I work for state government, and I have always assumed that my private cell phone was still my private device, and per the 4th Amendment, they'd need a search warrant in order to search it, particularly in a "sweep" where there was no evidence that I committed a crime or that my cell phone posed an immediate threat to anyone but they were just searching a whole group of employees' cell phones in a fishing expedition to see whether anyone was doing anything wrong (Is that an incorrect assumption???)

     

    For a VERY long time I did not even bring my cell phone to work with me, and for even longer, I kept it turned off the entire time I was at work if I did -- because my view is that I shouldn't be taking personal calls or texts or whatever while I am on my employer's time.  I also DID worry about conducting State business on my personal cell phone because I was worried that if I did so, I would be out of compliance with our State's Open Records and Records Retention laws.  So even while MANY of my co-workers gave out their cell phone numbers and accepted business calls on them during evenings & weekends, I did not.

     

    More recently, mostly due to pressure to be available nearly 24/7 to answer questions, do last minute research or provide documents during off-hours, etc., and due to being required to give my cell phone number to my employer so they could reach me "in an emergency", and due to the expectation that I would respond to work e-mails and/or texts during weekends, evenings (as late as 11 p.m.), and early mornings (as early as 5 a.m.) I have started receiving my work e-mail & texts on my personal cell phone during off-hours just so that I didn't need to remain glued to a computer 24/7 and (since I now travel a lot for my job) so that I could continue to receive my work e-mail even while traveling.

     

    I don't like all this stuff going on on the same personal cell phone that I use to communicate with my spouse, family members, college friends, neighbors, elected officials, play games on, etc.  I have asked for an employer-provided cell phone just for business purposes and they have denied the request (multiple times).

     

    I am starting to think that I need to obtain a whole separate cell phone and separate cell phone service and a separate cell phone account just for work-related business... which doesn't seem fair since they don't deem me in need of a work-provided cell phone.

     

    I guess my question is just:  how much of my personal cell phone (and any communications on it) and cell phone records does my government employer have a right to demand access to just because they're curious and I work there?

     

    The story in today's news (if true) kind of is my worst nightmare.

  • Sun, Feb 26 2017 11:36 AM In reply to

    • DOCAR
      Lawyer
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    • Joined on Sat, Dec 9 2000
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    Re: Can They Really Do This?

    My gut reaction.  If you bring it to work and it is on the employers property, it is fair game. If it is at home it is not. In your car parked on employer property is the gray area.  I would fell much stronger if they had an announced policy that all cell phones were subject to search if brought on property. If you can be fired for social media postings done at home on your own time on your own device, then this is the next step.

  • Sun, Feb 26 2017 1:14 PM In reply to

    • Kivi
      Consumer
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    • Joined on Sat, Jan 1 2005
    • CA
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    Re: Can They Really Do This?

    Certain Federal agencies, such as the Dept. of Defense (DOD) and the Dept. of Homeland Security DHS), with its many law enforcement subagencies, may have written policies about cell phones in place already. The Dept. of Justice, with its many law enforcement subagencies, probably has such policies as well. 

    Federal agencies,the like Dept. of Heath and Human Services (HHS) and Labor (DOL) would be less likely to have such policies. 

    If the Federal agency in question was one of the "intelligence" ones, you probably can bet the mortgage money that cell phones, even private ones, can be searched. 

    Of course, in many agencies where there is access to "classified" info, employees cannot bring cell phones onto agency property, unless it is a Government issued one. The problem is, of course, cell phones are pretty small and easily concealed. 

     

  • Sun, Feb 26 2017 1:15 PM In reply to

    Re: Can They Really Do This?

    If you worked for a private employer the answer would be easy: the employer may ask you turn over the phone for examination (especially if it is a phone used to conduct the employer’s business), the employee may say no and refuse to turn the phone over, and the employer of course could fire you for refusing.

    You work for the government, so it gets a little more complicated than that. The government would generally need a warrant or subpoena to forcibly get a cell phone and examine it for evidence of a crime. You are a government employee though, and in its role as employer it has many of the same rights of any other employer. It has a right to protect its legitimate governmental interests so long as that does not impermissively intrude on your constutitional rights. Your state’s civil service laws and regulations also come into play here. But, absent some strong protection against termination in this kind of circumstance, your employer is probably in much the same position as the private employer: it cannot take your personal phone without your consent, but it probably could fire you for refusing to comply, at least if there was some legitimate need for the agency to make the request.

    You may want to consult a lawyer in your state who is familiar with your state’s civil service rules for advice on what your agency may and may not do, since state law and agency regulations are a significant part of that determination.

  • Sun, Feb 26 2017 4:28 PM In reply to

    Re: Can They Really Do This?

    Thanks, all.

     

    For the cost of a consultation with an attorney who specializes in this area of law I could probably get another cell phone & cell phone account for the better part of a year.

     

    I am probably going to do that, just because I don't want my government employer digging through all my private communications with my friends and family, or looking at what games I play on my cell phone when I'm waiting in line for concert tickets, or my private communications with former Union members, etc., etc.

     

    Besides that, I am still worried about our Open Records law.  By law everything is a record and practically every communication can be the subject of an open records request.  I don't even know how to preserve all those "records" on my cell phone.

     

    So I'd rather get a whole different phone and then if they ever need anything off it just hand it over and let our I.T. people figure it out.

     

    Thanks again.

  • Sun, Feb 26 2017 6:00 PM In reply to

    • Drew
      Consumer
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    • Joined on Thu, Mar 30 2000
    • PA
    • Posts 51,374

    Re: Can They Really Do This?

    I would suspect that a second phone solves 98% of your exposure ...But be mechanically perfect how you use it 



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