No Reasonable Expectation Of Privacy In Cell Phone Backups…
Jennifer Smith was a police officer for the City of Pelham, Alabama. When the police chief became concerned that Smith was excessively using sick time and time of, particularly on Fridays and Mondays, he asked a detective to conduct a forensic analysis of Smith’s work computer. The City has a Computer/Email & Internet Use Policy (Computer Use Policy) governing employees’ use of their work computers.
The Computer Use Policy provides that “each employee shall be responsible for using the City’s computer systems for job-related purposes only” and permits disciplinary action up to and including termination for “misuse” of the computers and network. “Misuse” is defined to include “accessing, viewing, downloading, or any other method for retrieving non-city related information including, but not limited to, entertainment sites or pornographic sites.” The policy also prohibits the “downloading of flies without the express consent of the department head.”
A Police Department Internal Memorandum sent to all employees prohibits the storage of “personal photos, music, documents or videos on City servers.” The Memorandum states that servers are for “police use only” and are not available for an employee’s “storage of personal documents of any kind.”
As part of his review, the detective found iPhone backups on Smith’s computer. The detective discovered that the backups contained nude images of Smith and others. The only way the computer could have backed up Smith’s cell phone was if she had plugged her phone into her computer. Smith admitted that she had connected her cell phone to her computer for work purposes, but she had not known that the computer would make backup copies of her phone. The backup copies were accessible to anyone on the City network with administrator privileges.
When the Chief fired her, Smith sued, claiming (among other things) a violation of her right to privacy. The federal 11th Circuit Court of Appeals rejected her lawsuit.
The Court held that “an individual has a reasonable expectation of privacy only if she can establish both a subjective expectation of privacy in the object of the search and that society is prepared to recognize as reasonable the expectation of privacy. If an individual lacks a reasonable expectation of privacy, she cannot challenge the search.
“Notably, Smith could not have had a subjective expectation of privacy because the City’s Computer Use Policy provided that the City had a right to monitor all users
of city computing systems. In other words, her expectation was reduced because the Computer Use Policy made it clear that the information contained on her computer
could be monitored.
“Smith argues, however, that the privacy violation occurred, not when her computer was examined, but when the detective intruded upon the contents of her personal cell phone. She argues that the City would not be permitted to conduct a warrantless search of her cell phone merely because it was in her work office, so it could not search the electronic copy of her cell phone merely because it was saved on her work computer.
“Smith’s argument is unavailing because we are not faced with those facts. The search was of her computer, not her cell phone. Unbeknownst to Smith, when she backed up her iPhone, her cell phone data was also stored on her computer. Smith’s misunderstanding or inadvertence does not control the outcome. It bears repeating that the City’s Computer Use Policy provided that the City could access any data residing on the City’s computer systems. Smith was aware of that policy. It is of no import that she did not know that connecting her phone to her computer would cause the computer to back up the contents of the phone.”
Smith v. City of Pelham, 2021 WL 5863412 (11th Cir. 2021)
Reprinted from Public Safety Labor News
February 2022 Edition