Email, Privacy, and
Law Enforcement
“Because of the rapid advancement of technology during the twentieth
century, what once has been viewed as science fiction has become a
circumstance of everyday life. The proliferation of the new technology
has demanded rapid legislative and judicial responses to resolve legal
problems of the emerging technology.” Jeffrey A. Helewitz
Instructor:
Barry Krischer, State Attorney Palm Beach County – Retired
P.B.S.O. Legal Dept. Volunteer
KrischerB@pbso.org
LegalEagleServices.net
You answer to two masters…
As a law enforcement officer you must obey Florida
Statute at the same time as Department S.O.P.
Email
Rule #1:
 You have no personal life.
 You are on-duty 24/7.
 Everything you do will be
viewed within context of a LEO.
Email
Facebook, Twitter, My space, You
Tube are all useful tools. But like any
tool – Taser or firearm – they can be
abused.
 Use them responsibly and in accord
with department policy and
community standards and morals.

Be Responsible On-Line
Email
“Be careful what you post on Facebook.
Whatever you do. It will be pulled up
again later somewhere in your life.”
President Barak Obama addressing students,
September, 2009.
Legal Questions
Email
1. Can personal and professional business
ever be separate?
2. Do you have a right to privacy?
Privacy? No!
Email
Privacy? No!
Boca Raton Police Department, General Order 13.966
4. NO EXPECTATION OF PRIVACY:
 a. Employees shall have no expectation of privacy when
using Department authorized or provided communications or
computer systems.
 b. Passwords assigned to or used by employees do not
create an expectation of privacy for the employee, but are
used solely to prevent access by unauthorized persons.
 d. An employee’s continued employment constitutes a waiver,
by the employee, of any claims for infringement of privacy
by the Department.
Can personal and professional business ever
be separate?
Supreme Court of Florida
State of Florida
v.
City of Clearwater
Times Publishing Company
v.
City of Clearwater
Florida Constitution
Article I – Declaration of Rights
Section 24. Access to public records and meetings.-(a) Every person has the right to inspect or copy any public
record made or received in connection with the official
business of any public body, officer, or employee of the
state, or persons acting on their behalf, except with respect
to records exempted pursuant to this section or specifically
made confidential by this Constitution.
Public Records, F.S. 119.011(1)
“Public Records” shall mean all documents, papers, letters,
maps, books, tapes, photographs, films, sound recordings or
other material, regardless of physical form or characteristics,
made or received pursuant to law or ordinance or in connection
with the transaction of official business by any agency.
Thus, electronic documents stored in a computer can be public
records provided they are “made or received pursuant to law or
ordinance or in connection with the transaction of official
business.”
State v. City of Clearwater
State v. City of Clearwater
“Just as an agency cannot circumvent the Public
Records Act by allowing a private entity to maintain
physical custody of documents that fall within the
definition of ‘public records,’ private documents cannot
be deemed public records solely by virtue of their
placement on an agency-owned computer. The
determining factor is the nature of the record, not its
physical location.”
State v. City of Clearwater
“Moreover, we agree that the City’s ‘Computer
Resources Use Policy,’ which states that the City's
computer resources are the property of the City and that
users have no expectation of privacy, cannot be
construed as expanding the constitutional or statutory
definition of public records to include personal
documents.”
Electronic Mail Communications
Sec. 668.6076, F.S. requires a government agency, that is subject
to the Public Records laws pursuant to Chapter 119, F.S., that
operates a website and uses electronic mail must post the following
statement in a conspicuous location on its website:
“Under Florida law, e-mail addresses are public records.
If you do not want your e-mail address released in
response to a public records request, do not send
electronic mail to this entity. Instead, contact this office
by phone or in writing.”
Retention Period for E-Mail
There is no single retention period that applies to all
electronic messages.
Retention periods are determined by the content,
nature, and purpose of the record and are set
based on their legal, fiscal, administrative, and
historical values, regardless of the format in which
they reside or the method by which they are
transmitted.
General Records Schedule GS1-SL for State and Local Governments
Transitory Messages
These are records that are created primarily to
communicate information of short-term value, based
upon the content and purpose of the message not
the format or technology used to transmit it.
Includes reminders about scheduled meetings,
telephone messages, announcement of office events,
lectures, or workshops.
Retain until obsolete, superseded, or administration
value is lost.
Texting Privacy
The U.S. Supreme Court reviewed an officer’s
expectation of privacy in his text messages using a
department alpha-numeric pager:
City of Ontario, CA v. Quon
Texting Privacy
City of Ontario, CA v. Quon
“Prudence counsels caution before the facts in the
instant case are used to establish far-reaching
premises that define the existence, and extent, of
privacy expectations enjoyed by employees when
using employer-provided communication devices.”
U.S. Supreme Court (June 17, 2010)
Texting Privacy
City of Ontario, CA v. Quon
“A government employer’s warrantless search in
connection with an investigation of work-related
misconduct is reasonable if it is justified at its
inception, and if the measures adopted are
reasonably related to the objectives of the search,
and not excessively intrusive in light of the
circumstances giving rise to the search.”
U.S. Supreme Court (June 17, 2010)
Texting Privacy
City of Ontario, CA v. Quon
“Even if he could assume some level of privacy would
inhere in his messages, it would not have been
reasonable for Quon to conclude that his messages
were in all circumstances immune from scrutiny.
Quon was told that his messages were subject to
auditing. As a law enforcement officer, he would or
should have known that his actions were likely to
come under legal scrutiny, and that this might entail
an analysis of his on-the-job communications.”
Texting Privacy
In that the Florida Supreme Court’s ruling in Times
Publishing v. City of Clearwater, (pertaining to
privacy of government e-mail), was premised on
Florida’s Public Records Law as contained within
Florida Constitution and statute, the U.S. Supreme
Court’s opinion in Quon will not impact that opinion.
Email
In a Massachusetts class-action suit over the dangers of
the diet drug combination Phen-Fen, the court allowed
this email from a company executive to be admitted in
evidence:
“Do I have to look forward to spending my
waning years writing checks to fat people
worried about a silly lung problem?”
Email
Chevron settled a lawsuit for 2.2 million that
involved an inter-office email entitled:
“25 Reasons Why Beer is Better Than Women”
Email
Baker came under
fire over the
weekend for an
e-mail he sent late
last week that
compared first lady
Michelle Obama to
a chimpanzee.
Baker has since
apologized for the
e-mail, which he
said he previously
received and
forwarded to a
small number of
people as “political
humor.”
Email
Rule #2
You are not responsible nor held accountable for
crude jokes you receive in your email in-box.
You are responsible, and you own,
the emails you forward.
Electronic Communications Privacy Act
The ECPA makes it a federal crime for an individual to
intentionally or willfully intercept, access, disclose, or use
another’s wire, oral, or electronic communication.
Applies equally to telephone and email communications.
There are three exceptions to ECPA:
1. provider exception;
2. legitimate business exception;
3. consent exception.
Most recently Homeland Security.
“A 15 year veteran of the Columbus, Ohio PD
triggered a citywide uproar. The cop and her sister
uploaded offensive videos on You Tube and their
personal website. The veteran cop did not appear in
uniform and did not identify herself as a cop. The
videos now provide strong fodder for defense
attorneys in cases involving the veteran police
officer.”
Source: Theodore Decker, “Bigoted Videos Investigated,” Columbus Dispatch, August 29, 2007
Crime scene photos on cell phone - Don’t!
Recording of Official Sheriff’s Office Business
INTER-OFFICE MEMORANDUM
TO: All Employees
DATE: April 9, 2010
FROM: Sheriff Ric Bradshaw
FILE: SO 0410-1
SUBJECT: Special Order 0410-1 Recording of Official Sheriff’s Office Business
Employees are prohibited from utilizing any camera, cellular
phone or other electronic device to make video, audio, digital,
photographic or any other type of recording of official
Sheriff’s Office business while on or off duty, or while
representing the Sheriff’s Office in an official capacity, or
within any facility of the Sheriff’s Office, except as specifically
authorized pursuant to Sheriff’s Office policy and procedure.
Facebook smarts
“An elite unit of
the Israeli army
had to scuttle
plans for a West
Bank raid after a
soldier posted a
Facebook status
that detailed the
unit’s plans.”
The IDF issued a nasty letter warning soldiers that “enemy intelligence
scans the internet for…information that could sabotage operations and
endanger our forces.”
Facebook smarts
You have no personal life!
Opinion Blogs
Susan L. Purtee’s off-duty opinions collided with her
on-duty career as a Columbus police officer
yesterday, when city leaders from the mayor down
denounced the views she posted online about Jews,
blacks and immigrants.
Purtee, a 15-year veteran, will be taken
off the street while internal affairs
investigates.
You have no personal life!
Opinion Blogs
Defamation Law:
 Any false statement of fact
 That may damage the image or reputation of an
individual, or entity (like your agency)
 That is published (oral = slander; written = libel)
 With fault:
 Private
person fault is negligence
 Public figure fault is actual malice
Who Is This Man?
Kwame Kilpatrick
Former Mayor of Detroit, Michigan
14,000 Text Messages
In trial, Kilpatrick claimed, “He was not fired.
My understanding is he could go back to
Lieutenant…but I think he chose to retire.”
Beatty: “I’m sorry that we are going through this mess
because of a decision that we made to FIRE Gary
Brown. I will make sure the next decision is much
more thought out. Not regretting what was done at
all. But thinking about how we can do things
smarter.”
Sexting
May 27, 2001: Rep. Anthony Weiner uses his
Twitter account to send a waist-down
photograph of a man’s underpants
to a 21-year-old female college
student in Seattle. He quickly
deletes it and sends out a
Tweets saying that his
Facebook account was hacked.
3 weeks he resigned.
Be Responsible On-Line!
The End of Forgetting
It’s not just that the Web and
social networking threaten
your privacy. It’s that there is
no way in the digital age to
move on, to start over – to
erase your posted past.
N.Y. Times, July 25, 2010
Internet Postings Are Forever
Rule #3
Refrain from posting things on-line that
you will regret later. The odds are good
that someone, someday, will stumble
across it, and it may come back to haunt
you – especially if you are planning to
run for public office.
Sources of Electronic Evidence
Home
Work
Car
Third
Parties
Electronic
Media
Sources
Email
IM
Texting
Blogs
Documents
Flashdrive
Laptop
Hard-drive
Blackberry
Cell phone
Sources of Electronic Evidence
Sources of Electronic Evidence
Home
Work
Car
Third
Parties
Electronic
Media
Sources
Email
IM
Texting
Blogs
Documents
Flashdrive
Laptop
Hard-drive
Blackberry
Cell phone
Discovery Rules
Rule 1.280 provides:
“Parties may obtain discovery regarding any matter,
not privileged, that is relevant to the subject matter
of the pending action.”
 Rule 1.350 provides:
“Any party may request any other party to…inspect,
copy, test, or sample any tangible things that
constitute matters within the scope of Discovery
Rule 1.280.”

Sources of Electronic Evidence
Home
Work
Car
Third
Parties
Electronic
Media
Sources
Email
IM
Texting
Blogs
Documents
Flashdrive
Laptop
Hard-drive
Blackberry
Cell phone
What We Can Learn





Electronic media shows real time movement
Text messages/Twitter/Email is date and time
stamped
IP address is recorded
Electronic media crosses state and national
boundaries…what may not be offensive in Florida
may be offensive in Mississippi or Iran
“Honest services” federal prosecution under
18 USC 1343 (20 year felony)
Email