The Trouble With Texting

Posted on Tuesday, January 03, 2017 at 12:00AM

Principal Attorney
Berry Wilkinson Law Group
2016 was the year of the text. Case after case dropped on my desk where casual, colorful, private commentary suddenly became public, causing employers to take disciplinary action. The penalties ranged from termination for the ugliest and most offensive of exchanges, to light suspensions for ill-advised banter.
These cases all shared one similarity: They arose because criminal investigators served a search warrant on a colleague’s phone. Half a dozen cases landed on my desk when there was a death in custody at the Santa Clara County jail, resulting in three corrections deputies being investigated for murder. The phones of the co-workers with whom the investigated deputies had been communicating were then warranted. Thankfully, each of the deputies I represented kept their jobs despite their loose texting talk. Others were not so lucky.
The highest profile texting case in the San Francisco Bay Area came out of a federal search warrant for a now convicted former San Francisco police sergeant. The exchanges between that sergeant and some of his co-workers were incendiary, offensive, racist, homophobic and anti-Semitic in nature. Once the U.S. Attorney publicly released the text exchanges, the SFPD moved to terminate several of the most serious offenders. Those officers got lucky — I was able to convince the San Francisco Superior Court to issue an order preventing the Department from disciplining any of the involved officers due to the one-year statute of limitations contained in the Public Safety Officers’  Procedural Bill of Rights Act. While it was a rare procedural victory, each of the involved officers’ reputations are so tarnished, they likely can no longer operate effectively in their chosen profession.
While a warrant on a colleague’s phone may have been the downfall of many in 2016, it is not the only way a private text exchange can come to an employer’s attention. Many an officer has been the victim of a spurned lover taking vengeance by turning over their texts to the department. In one case, an officer found himself the subject of an investigation when the ex-girlfriend sent the department a text exchange in which he quipped, “Be prepared — I’ve got plenty of weed for us to smoke tonight,” after a successful drug bust.
A word to the wise: Learn from the mistakes of others. What may seem private and funny at the time can end a career when those texts unexpectedly come to light.
There are many privacy protections for your personal cellphone, but they are not absolute. The strongest protection was a statute enacted this year: Penal Code Section 1546, the California Electronic Communications Privacy Act (CalECPA). Intended to restrict law enforcement’s ability to obtain information during criminal investigations, it had the unintended effect of limiting the ability of government employers to secure information from their employees’ personal cellphones during misconduct investigations.
With the passage of CalECPA, law enforcement employers can no longer order an employee to turn over his or her personal cellphone as part of an administrative investigation.
The reason: CalECPA provides that a government entity (such as a city, county or state agency employer) shall not do any of the following: 1) compel the production of or access to electronic communication information from a service provider, 2) compel the production of or access to electronic device information from any person or entity other than the authorized possessor of the device, and 3) access electronic device information by means of physical interaction or electronic communication with the electronic device (Penal Code Section 1546.1[a][1]-[3]). This means that, absent consent, a search warrant or court order is required to search or access information on any electronic device (e.g., a smartphone or computer) or electronic information on a network (e.g., email).
However, this language does not protect a public employee who has been provided an electronic device by his or her employer, because the statute allows the owner of the electronic device (the entity) to consent, even if the authorized possessor of the device (the employee) does not consent.
Even though we have these new privacy protections regarding your electronic communications, as shown by a myriad of cases this year, your texts can be used against you for disciplinary purposes when the personal cellphone of a colleague is lawfully accessed, or when someone turns those texts over to the department to foster his or her agenda.
The lesson of 2016, therefore, should be to mind your manners when texting. The cost of that spur-of-the-moment, witty remark just might be your career.

About the Author
Alison Berry Wilkinson of the Berry Wilkinson Law Group is dedicated to providing effective, quality representation to public safety employees in civil, criminal, disciplinary and collective bargaining matters. Formerly a partner at Rains, Lucia & Wilkinson, Alison continues to actively and aggressively advocate on behalf of peace officers statewide.

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