Originally appeared in the CAS Weekly Newsletter.
Written by attorney Thomas B. Mooney.

Dear Legal Mailbag:

I am concerned that one of the assistant principals at my school may be using drugs. He is often jumpy and irritable. Moreover, he always seems to have a runny nose, which I know from watching television can be a sign of cocaine abuse.

As an assistant principal, he has a district-issued cell phone, and I’d bet dollars to donuts that I can find text messages on his phone to show his drug involvement. I know that we have to sign off on some sort of waiver when we use district technology, and I presume that this assistant did so as well. Can I sit him down in my office and order him to turn over his cell phone to me?

Thank you,
Call Me Curious

Dear Curious:

Legal Mailbag thinks that you watch too much television. During this allergy season, it is quite a leap from a runny nose to cocaine abuse. Legal Mailbag must say that your suspicions seem unfounded.

Given that you really don’t have reasonable cause here, the crux of your question is whether the school district can search the assistant principal’s district-issued cell phone without cause just because he signed some sort of acceptable use form. The same question may be asked about a district-issued email account. And the practical answer to both questions is no.

Given rulings of the United States Supreme Court regarding public employees and the Fourth Amendment (which prohibits unreasonable searches and seizures), it is clear that public employers may search public employees and their possession when there is reasonable suspicion that the search will yield evidence of a violation of workplace rules or the law. Moreover, the scope of the search should be reasonable in light of the object of the search and should not be excessively intrusive.

Given that a runny nose and irritability do not give rise to reasonable suspicion here, we must ask whether the assistant principal is fair game for a search simply because he signed an acceptable use policy. In advising that such a sign-off is not enough, Legal Mailbag relies on a decision of the United States Supreme Court, City of Ontario v. Quon, 560 U.S. 746 (2010).

There, the City provided pagers for business use, and after months of incurring extra fees when the contract limits were exceeded, the Police Chief decided to review the pager usage to determine whether the monthly limit was either too low or too high. The City contacted the pager service provider and obtained transcripts of the messages of two employees who had repeatedly exceeded the limit. Upon review, the City found that the majority of the messages were not work-related, and that one employee’s messages were sexually explicit between himself and his wife, and between himself and his girlfriend. The employees sued the City, arguing that their constitutional right to be free from unreasonable searches and seizures was violated. The Supreme Court disagreed and found in favor of the City.

In its decision, the Court recognized that the special needs of an employer may be sufficient to justify searches for work-related misconduct. The Court found that the search was reasonable for two main reasons. First, the search was motivated by a legitimate work related purpose: the desire to assess the monthly usage limit. Second, the search was not overly intrusive: the pagers had been provided by the employer and were not private. However, the Court cautioned that the scope of privacy expectations is evolving as we rely increasingly on technology in our daily lives:

The Court must proceed with care when considering the whole concept of privacy expectations in communications made on electronic equipment owned by a government employer. The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear. . . . 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.

Rapid changes in the dynamics of communication and information transmission are evident not just in the technology itself but in what society accepts as proper behavior. . . . At present, it is uncertain how workplace norms, and the law’s treatment of them, will evolve.

Given the evolving principles, for now school officials are well-advised to exercise their right to search district-issued cell phones or to review employee email on the district server only when they have reasonable cause for the “search.”