New Fourth Amendment Mobile Data Protection May Not Apply In Private Workplace

Flag Constitution Smart Phone ComboNow that the United States Supreme Court has determined that cell phones, or mobile devices, fit squarely under the protection of the 225 year old Fourth Amendment to the Constitution, here’s what you need to know.

A case about the permissible extent of a search incident to arrest may have a much broader impact and affect the rights of privacy of employees in the work place.

In the recent Riley v. California decision, everyone was put on notice that the Supreme Court considers electronic storage devices, especially smart phones, to have new and special privacy concerns. Before Riley, the Court had held that a person could be searched incident to arrest without a warrant and the scope of that search could include a full search of the person and anything within his control or nearby where he could reach and find a weapon or where evidence could be obtained and destroyed.

In Riley, the Court decided that cell phones may not be searched incident to arrest without a warrant, and the Court was expansive in that decision.

The Court found that cell phones are unlike anything previously considered. In fact, 90% of Americans who have cell phones keep information on them that details nearly every aspect of their lives. The Court found that these privacy interests are worth protection and that, in order to search a cell phone, a warrant would be required.

In Riley and other cases, however, the Court has addressed privacy rights in electronic media and recognizes that we’re in a new era with our ability to store information. Cell phones are cameras, rolodexes, video players, music players, calendars, libraries, diaries, televisions, maps, and newspapers all rolled into one.

This new media is going to be protected. The question remains on how this protection carries over to the concerns of private companies and employers.

Because the Court made clear that privacy interests in electronically stored information are worthy of special protection. The Fourth Amendment only prohibits action by government, but individuals have common law privacy rights. This leads to two questions:

  1. Should employers worry about the right to search?
  1. Should an employee have any expectation of mobile device privacy when using company-owned equipment?

While the government faces restrictions, private employers do have certain rights to search employees.

Employers have long warned employees that data in their own devices might be searched while at work.

In the past, a policy included in an employee handbook was most often sufficient to justify a search in the workplace. Now, employers should at the least, review their policies and obtain a written understanding of the policy that any device used at work by an employee, regardless of whether it is provided by the employer, is subject to search. Make these policies clear and detailed and review them with your employees.

As technology continues to advance, these policies and warnings may not be sufficient.