Soronel Haetir: One other issue that I thought of here is that in many states these sorts of communications would appear to be covered under open records laws. Given my understanding that people can waive rights to obtain government employment I would certainly think state law would control over what a local supervisor verbally tells someone.

I work for a governmental entity and it would never occur to me that anything I texted on a government-owned device would be anything other than a public record available to anyone and everyone who asked to see it.

It also might be worth considering the other “Constitutional rights in public employment” cases, e.g., the First Amendment cases (Connick, Pickering, Garcetti), most of which rely at least in the most part on some balancing test which weighs the level of intrusion on the employee’s right against the government employer’s interest as an employer, as opposed to as the government.

In any case, I look forward to reading whatever further thoughts you have on this case.

This also means that you should not leave anything risque in your desk or on the walls of your cube. It is a sad statement about the state of affairs, but it is clear to me that life in a government workspace should be as sterile as possible. Leave any parts of your life that could possibly be construed as offensive by anyone, outside your workplace.

I’ve seen a couple cases where private employees using company equipment nevertheless were able to keep materials out of court on privacy grounds.

Personally I think that is nuts, your employer owns the equipment, and owns your time, anything you produce under those circumstances should belong to the employer.

The LA Times says, “While the 4th Amendment applies only to the government, many judges rely on the high court’s privacy rulings in deciding disputes in the private sector, legal experts say.” Does anyone have any sense of how accurate this is?

The sui generis framework basically does that through the focus on government workplace policies. You can think of the government workplace policy as equivalent to the employer’s policy about what they would do if the police came and asked for consent. In other words, the workplace policy essentially stands in the place of the employer who would be in a position to allow or forbid consent.

So, why not give public employees the same 4th Amendment protection from the boss-with-badge that private employees have from the policeman-acting-with-consent-of-boss (which is different from boss+policeman)? Have any justices, judges, litigants, or scholars advocated that sort of simple solution?