Employment Law Daily No clear right to privacy in content of employee work emails obtained by faked subpoena
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Tuesday, September 25, 2018

No clear right to privacy in content of employee work emails obtained by faked subpoena

By Ronald Miller, J.D.

Because an employee did not have a reasonable expectation of privacy in her work emails, a prosecutor and investigator from the state attorney general’s office were entitled to qualified immunity against her claim that they violated her Fourth Amendment right to be free from an unreasonable search when they used an invalid subpoena to induce her employer to produce her work emails, ruled the Third Circuit. Here, it was undisputed that the communications in question were sent or received from her work email account. Moreover, as a public employer, Penn State was a third party with common authority over the employee’s work emails and the independent ability to consent to a search. However, the appeals court vacated the district court’s denial of the employee’s motion to file an amended complaint to assert claims under Stored Communications Act (Walker v. Coffey, September 20, 2018, Roth, J.).

Invalid subpoena. In July 2015, the Pennsylvania Office of the Attorney General (OAG) filed criminal charges against the employee, including counts of forgery and various computer crime offenses. These charges were joined with prior charges against the employee’s husband and his trucking company. In October 2015, before her trial had been scheduled, the prosecutor assigned the case and the lead investigator sought to obtain the employee’s work emails from her employer, Penn State University, as part of their investigation. The employer requested formal documentation. Thereafter the OAG agents obtained a blank subpoena which they filled out in part. The subpoena was blank as to the date, time, and place of production and the party on behalf of whom testimony was required. Thus, it was conceded that the subpoena was, on its face, incomplete and unenforceable.

Nonetheless, Penn State employees searched for the requested emails and turned them over to the OAG investigator. Thereafter the criminal charges against the employee were dismissed.

Claim of unreasonable search. The employee then filed this action under § 1983 alleging the two employees of OAG’s office violated her Fourth Amendment right to be free from an unreasonable search when they used an invalid subpoena to induce her employer to produce her work emails. The OAG employees moved to dismiss, arguing that they were entitled to qualified immunity because the employee did not have a reasonable expectation of privacy in her work emails, or, if she did, that right was not clearly established. The district court granted the motion to dismiss, agreeing that the agents were entitled to qualified immunity.

On a motion for reconsideration, the employee proposed a second amended complaint that included a charge for violation of the Stored Communications Act (SCA). The district court denied the motion, ignoring her SCA claim.

Qualified immunity. “Qualified immunity shields government officials from civil damages liability unless the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct.” “To resolve a claim of qualified immunity, courts engage in a two-pronged inquiry: (1) whether the plaintiff sufficiently alleged the violation of a constitutional right, and (2) whether the right was ‘clearly established’ at the time of the official’s conduct.” When considering whether a right is clearly established for purposes of qualified immunity, a court must, as a threshold matter, identify the scope of the right at issue.

The Third Circuit began its analysis by identifying the constitutional right at issue. Thus, it had to consider whether it was clearly established that the Fourth Amendment afforded an employee the right to have the contents of her work emails free from law enforcement search, absent a warrant or valid exception to the warrant requirement. Concluding that such a right was not clearly established, the appeals court held that the prosecutor and investigator were entitled to qualified immunity.

Reasonable expectation of privacy. “The touchstone of Fourth Amendment analysis is whether a person has a ‘constitutionally protected reasonable expectation of privacy.’” Courts answer this question through a two-part test. First, a court considers whether an individual has “manifested a subjective expectation of privacy in the object of the challenged search.” Second, a court considers whether “society is willing to recognize that expectation as reasonable.” In this case, the court focused on whether the employee enjoyed an objectively reasonable expectation of privacy in the content of her work emails.

Here, the court concluded that the employee failed identify a “robust consensus of cases of persuasive authority.” Electronic communications present new considerations, and perhaps distinguishing features, that may counsel caution rather than rote application of older precedents addressing other forms of communication, explained the appeals court. As such, the court was hard put to find that the employee enjoyed a clearly established right to privacy in the content of her work emails.

Workplace rights. However, because this case involved the employee’s work emails, which were produced to law enforcement by her employer, the inquiry did not end there. Those facts removed any doubt that the employee failed to allege a violation of a clearly established constitutional right. Here, it was undisputed that the communications in question were sent or received from her work email account. An employee’s Fourth Amendment rights in the workplace are subject to additional exceptions and limitations.

Public employers are free to conduct a warrantless search of an employee’s files or communications if the search is “conducted for non-investigatory, work-related purpose” or for the “investigation of work-related misconduct.” Thus, for public employees, their privacy interests vis-a-vis their far more circumscribed. For purposes of the Fourth Amendment, the employee’s emails were subject to the common authority of the employer. Accordingly, she did not enjoy any reasonable expectation of privacy vis-a-vis her employer, which could independently consent to a search of her work emails.

In this instance, Penn State was a third party with common authority over the employee’s work emails and independent ability to consent to a search. Rather than contest the validity of the subpoena or otherwise limit any search, the employer agreed to assist with the production of the employee’s emails. Under these circumstances, despite a facially invalid subpoena, the appeals court declined to find that Penn State’s consent was coerced. Therefore, the appeals court affirmed the district court’s dismissal of the employee’s § 1983 claim.

Complaint amendment. The employee also appealed the district court’s denial of her motion for reconsideration and for leave to file a second amended complaint. Here, the appeals court determined that it had insufficient information to determine whether the employee could plead a valid claim under the SCA. Finding that the district court abused its discretion, the appeals court vacated denial of the employee’s motion to file amended complaint to assert SCA claims.

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