Category Archives: Expectation of Privacy

New Digital Assets Law Coming to California???

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What happens to your Facebook account when you die… does it die too? What about your PayPal account, iTunes library and all your other valuable digital assets? States around the country have begun to pass legislation that allow individuals to access social media accounts and other digital accounts on behalf of a deceased individual.

To date, over 20 states have passed their own laws to protect digital assets and give the heirs/executor the right to access and manage online accounts after death. There have been tragic examples of people who have passed away and family members and loved ones were unable to access their social media and other electronic accounts due to terms of use and privacy policies.

California Digital Assets Law

An individual may “use an online tool to direct the custodian to disclose to a designated recipient or not disclose some or all of the user’s digital assets.”

California is the latest state to pass a digital assets bill. If it makes it out of the Assembly and is signed by governor Jerry Brown, the California Revised Uniform Fiduciary Access to Digital Assets Act will provide guidelines for how companies can share deceased individuals’ digital records such as emails and social media accounts following death. The law will grant the social media website or online company the right to grant full or partial access to a designated recipient.[1]

The California digital assets law is a sign of our new electronic times. It is also a reminder that attorneys must now recognize their client’s digital assets and identify how their clients want the assets to be accessed or distributed after their death. To access a CLE course on digital assets please click here: Digital Asset Landscape: Preparation for Changes in Legislation.

[1] The company must first receive a written request, a certified copy of the death certificate and/or a certified copy of the letter of appointment of the representative, along with authenticating information about the deceased user.

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New CLE Course on Drones & Liability

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Very soon there will be as many drones in the sky as flies…. that may be a stretch, but you get the picture of how popular drones have become. Every year millions of drones are bought used for everything from conducting surveillance and crop science to filming weddings, bar mitzvahs and other celebrations. But what happens when the drone your 12 year-old son is flying loses contact with the controller causing it to crash into a local restaurant that then catches fire and is forced to shut down for 1 week?

Drones also have great potential to lead to liability for manufacturers, retailers, pilots… and parents!

In this CLE course attorneys Eric Hanscom and Ed Burns provide an excellent discussion of the rise of drones and emerging areas of potential liability. The main points of discussion include the many uses of drones, drone regulation, drone liability and best practices for legal claims. To access the course please click here: Keep Calm and Drone On: Regulation and Liability.

Additional topics addressed in this CLE course:

  • Mechanics of UAVs
  • FAA regulation
  • Commercial vs. hobbyist use
  • The 333 exemption
  • Local ordinances
  • Flying on federal land
  • State vs. federal law
  • Liability for those in the chain of commerce
  • Negligence
  • Drones & privacy rights
  • Commercial uses for drones
  • Best practices if you are faced with a drone claim

Before beginning his own practice Eric Hanscom utilized his science background and law degree to gain experience in multiple facets of patent, trademark and copyright law and the application of those property rights. He has been actively involved in overseeing litigation, contract negotiation and customs issues in the US, Asia, Europe, South American and Australia over matters ranging from patent and trademark infringement to breach of contract. Edward W. Burns has extensive litigation experience in State and Federal Court and assists clients in protecting corporate intellectual property, including infringement litigation. Mr. Burns also practices in the preparation, review and filing of corporate documents and filings, employment contracts, independent contractor agreements, and employee handbooks, business contracts, supply and production agreements, sponsorship agreements and leases.

This CLE course is offered in the following states:

  • Alaska (AK)
  • Arizona (AZ)
  • California (CA)
  • Connecticut (CT)
  • District of Columbia (DC)
  • Illinois (IL)
  • Maryland (MD)
  • Massachusetts (MA)
  • Michigan (MI)
  • Missouri (MO)
  • New Hampshire (NH)
  • New Jersey (NJ)
  • New York (NY)
  • North Dakota (ND)
  • Pennsylvania (PA)
  • South Dakota (SD)

Attorney Credits offers CLE for attorneys in California and around the country. For more information about CLE in California please click the following link: CA CLE.

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New CLE Course on Drones and Civil Surveillance

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Drones are one of the hottest new technologies on the market. They are available online for as little as $89.00 and they can be flown legally under an altitude of 400 feet with certain weight restrictions. Very soon, millions of drones will be filling our skies on a daily basis for fun, to deliver pizzas, to drop off your latest purchase…. and spying on your neighbor?

Drones are now intersecting with one of the oldest practices – surveillance in civil litigation – and with the oldest regulator, the government.

In this presentation Massachusetts attorney Philip Howe explores the technology of drones, the FAA regulations that govern them and state statutes & local ordinances that have been passed to provide additional regulation. Phil will also examine the leading decisions on surveillance, recent amendments to civil codes & ordinances and what conduct is permissible. To access the course please click here: Drones and Civil Surveillance.

Additional topics covered include

  • The intersection of drones and surveillance
  • Legal issues that drones present
  • The many uses of drones
  • Drone incidents in our skies
  • Legally operating drones
  • Best practices for clients
  • The future of drones and drone law

Philip M. Howe is a civil litigator with 45 years experience in complex medical and financial issues in the areas of life, disability, automobile, health, homeowners, property and casualty insurance including defending claims of bad faith. Mr. Howe has additional experience in condominium, construction, commercial real estate leasing, medical malpractice, personal injury and real estate litigation. He has tried cases in California and Massachusetts, state and federal courts.

This CLE course is offered in the following states:

  • Alaska (AK)
  • Arizona (AZ)
  • California (CA)
  • Connecticut (CT)
  • District of Columbia (DC)
  • Illinois (IL)
  • Maryland (MD)
  • Massachusetts (MA)
  • Michigan (MI)
  • Missouri (MO)
  • New Hampshire (NH)
  • New Jersey (NJ)
  • New York (NY)
  • North Dakota (ND)
  • Pennsylvania (PA)
  • South Dakota (SD)

Attorney Credits offers CLE for attorneys in Illinois and around the country. For more information about CLE in Illinois please click the following link: IL CLE.

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CLE Course: Issue Spotting in Criminal Law Cases

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There is a great deal at risk when a person is accused of a crime. Your client’s life and liberty are at stake, and there is a lot of information you need to be able to recognize to ensure that your client’s rights are properly protected. Whether you are a civil attorney that needs a refresher on criminal law or you are an attorney that’s just starting out in criminal practice, this CLE program will cover the basics of criminal defense and issue spotting in criminal cases.

Common issues in criminal law courses:

  • Whether the questioning of the defendant was legal
  • Did the police have a legal reason to stop the defendant
  • Whether the police unlawfully seized evidence

In this Criminal Law 101 course, attorney Paul Ghanouni mainly discusses constitutional issues, police-citizen encounters, statements to police and search & seizure law. Attorneys that take this course will be able to: recognize key issues in criminal case, discuss common criminal law issues, identify key facts and conduct research on criminal topics. While this course does discuss key criminal topics & issues, it does not discuss the specific elements of criminal offenses because this information is specific to each jurisdiction. To access the course please click here: Criminal Law: Issue Spotting 101.

Further issues addressed in this CLE course:[1]

  • The exclusionary rule
  • The right to counsel
  • The right to silence
  • Voluntary statements
  • Searches of persons & motor vehicles
  • The plain view doctrine
  • The fruit of the poisonous tree doctrine
  • Key practice points

Paul Ghanouni is a criminal defense attorney based in Woodstock, Georgia. After beginning his career at a small firm, he founded his own law practice in 2007 and now specializes in teen and young adult defense. He is a regular presenter on legal issues before legal and community groups. Outside of his practice he is active with the Blue Ridge Bar Association, having served as vice president and president. He is a member of the Woodstock Optimist Club.

This CLE course is offered in the following states:

  • Alaska (AK)
  • Arizona (AZ)
  • California (CA)
  • Connecticut (CT)
  • District of Columbia (DC)
  • Illinois (IL)
  • Maryland (MD)
  • Massachusetts (MA)
  • Michigan (MI)
  • Missouri (MO)
  • New Hampshire (NH)
  • New Jersey (NJ)
  • New York (NY)
  • North Dakota (ND)
  • Pennsylvania (PA)
  • South Dakota (SD)

Attorney Credits offers continuing legal education (CLE) for attorneys in California and around the country. For more information about CLE in California please click the following link: CA CLE.

[1] Case law discussed in this CLE course includes: Terry v. Ohio, 392 U.S. 1 (1968), Beck v. Ohio, 379 U.S. 89 (1964), Moran v. Burbine, 475 U.S. 412 (1986), Davis v. United States, 512 U.S. 452 (1994), Miller v. Fenton, 474 U.S. 104 (1985), Mincey v. Arizona, 437 U.S. 385, Lynumn v. Illinois, 372 U.S. 528 (1963), Chimel v. California, 395 U.S. 752 (1969), United States v. Sharpe, 470 U.S. 675 (1985), Arizona v. Gant, 556 US 332 (2009), South Dakota v. Opperman, 428 U.S. 364 (1976), Pennsylvania v. Labron, 518 U.S. 938 (1996) and Horton v. California, 496 U.S. 128 (1990).

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CLE Course on the Importance of Mobile Phone Forensics in Litigation

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For many of us, the only time we’re not using your smartphone is when we are taking a shower – and I have to admit to checking my fantasy football scores in the shower. If you are like me, your smartphone is a text messaging device and a phone… and it’s also an Internet browser, a GPS device and the easiest way to send emails and check our stocks. Other people use their smartphone to post content to Facebook, Snapchat, Twitter, Vine, Instagram, Youtube and other social media and content sharing websites. We now live our lives through our phones, tablets and other mobile devices.

Mobile Phone Forensics

From a business and legal standpoint, the preservation and collection of electronically stored information (ESI) is central in today’s litigation landscape and is only complicated by smartphones and other mobile devices. Emails, presentations, spreadsheets, memos and even pictures & video can all be potentially responsive data sources. The challenge with this type of electronically stored information (ESI) is that it is often stored in a myriad of systems and mobile devices, and each system has its own preservation and collection nuances.

In this course, attorney and global eDiscovery & cyber forensics expert Paul Connolly describes the current landscape of mobile information collection and preservation and answers the vexing question of why attorneys so often overlook mobile data in the context of eDiscovery. Paul mainly discusses why collecting the data can be ethically challenging, expensive & potentially awkward, and he also provides some proactive policy and protocol ideas to bring clarity to your practice and electronic discovery of mobile devices.  To access the course please click here: Our Phones, Ourselves: The Importance of Mobile Phone Forensics in Litigation.

Additional topics covered in this CLE course include:

  • The prevalence of discoverable data on mobile devices
  • How preservation of employee text messages & other mobile data is frequently overlooked or botched
  • The practical issues faced when collecting data
  • Ethical complications
  • Privacy questions
  • Company BYOD (Bring Your Own Device) policies
  • Shadow BYOD policies

Paul K. Connolly is an attorney and Global E-Discovery & Cyber Forensics Expert with Duff and Phelps in Santa Monica, California. He has extensive case and workflow management responsibilities and handles internal investigations and “front page” enforcement actions by federal securities and antitrust regulators. Paul often works closely with internal counsel and compliance departments at international banks.

This CLE course is offered in the following states:

  • Alaska (AK)
  • Arizona (AZ)
  • California (CA)
  • Connecticut (CT)
  • District of Columbia (DC)
  • Illinois (IL)
  • Maryland (MD)
  • Massachusetts (MA)
  • Michigan (MI)
  • Missouri (MO)
  • New Hampshire (NH)
  • New Jersey (NJ)
  • New York (NY)
  • North Dakota (ND)
  • Pennsylvania (PA)
  • South Dakota (SD)

Attorney Credits offers continuing legal education (CLE) for attorneys in New York and around the country. For more information about CLE in New York please click the following link: NY CLE.

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CLE Course on How the Supreme Court Analyzes Evolving Technology

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Almost 100 years ago, the Supreme Court was forced to decide on the admissibility of evidence from a groundbreaking new technology – the systolic blood pressure test. At the time, the evidence from the systolic blood pressure test – or lie detector test – was held to be inadmissible because it was not “sufficiently established to have gained general acceptance in the particular field in which it belongs.”

Advances in sciences yield new, novel and high technology, much of which has significant legal ramifications. Unfortunately, technology evolves much faster than the laws can keep up and courts are forced to apply old legal doctrines to novel situations in our new digital world.

Fast-forward almost a century later and the Supreme Court now routinely decides major cases involving technology, reasonable expectations of privacy and the Fourth Amendment. In 2001, the Supreme Court aptly noted in Kyllo v. United States that technology has the power to erode Fourth Amendment privacy – and that seems to be exactly what’s happened in the ensuing years. Today, technological advances have given law enforcement powerful new tools at their disposal — stingrays, drones, thermal imaging devices, facial recognition software — to conduct surveillance and investigate criminal activity. Yet courts have been slow to keep pace with these technological changes and they have been split all over the map on what constitutes a violation of the Fourth Amendment’s prohibition against unreasonable search and seizure.

To learn more about how the Supreme Court of the United States (SCOTUS) has analyzed evolving technologies, please join attorney and forensic expert Herbert Joe as he details the court’s analysis on emerging technologies – from the lie detector test to digital technologies. Mr. Joe presents and discusses Frye vs. U.S. (polygraph machine), Katz vs. U.S. (recording devices), Kyllo vs. U.S. (thermal imaging devices), U.S. vs. Jones (GPS tracking devices), U.S. vs. Wurie and Riley vs. California (smartphone searches).

To access this course please click here: From Katz to Riley: How SCOTUS Analyzes Evolving Technology. Herbert Joe is a forensic scientist with 4 degrees, Graduate Faculty (Law) at the University of Phoenix and a Registered Patent Attorney. As managing partner of Yonovitz & Joe, L.L.P., his firm has been involved in 1000s of cases involving forensic audio/acoustic/voice/video evidence for the past 27 years. He is also a Certified Mediator, licensed to practice law in Texas and Oklahoma, a Registered Patent Attorney with the United States Patent & Trademark Office, and a Member of the College of the State Bar of Texas. He has testified in state and Federal courts in civil and criminal cases throughout the U.S. and overseas as an expert witness in forensic audio, acoustic, voice and video evidence, as well as an expert in patent law in patent infringement cases. Clients include all levels of state and Federal governmental entities, law firms throughout the world, Fortune 100 companies, Public Defender’s Office throughout the U.S.

This CLE course is currently offered in the following states:

  • Alaska (AK)
  • Arizona (AZ)
  • California (CA)
  • Connecticut (CT)
  • District of Columbia (DC)
  • Illinois (IL)
  • Maryland (MD)
  • Massachusetts (MA)
  • Michigan (MI)
  • New Jersey (NJ)
  • New York (NY)
  • North Dakota (ND)
  • Pennsylvania (PA)
  • South Dakota (SD)

Attorney Credits offers continuing legal education (CLE) for attorneys in New York and around the country. For more information about CLE in New York please click the following link: NY CLE.

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CLE Course: Ethics of Cloud Computing

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Welcome to the digital age! The use of cloud computing technologies offers lawyers and law firms alike distinct advantages in terms of cost savings, flexibility & mobility, ease of use and more efficient client service. However, because cloud computing places data – namely confidential client information – on remote servers outside of the lawyer’s direct control, it has given rise to some serious concerns regarding its acceptability under applicable ethics rules. For these reasons, attorneys must be cognizant of their ethical duties when selecting an appropriate vendor and deploying cloud technologies in their practice.

Your law firm would like to take advantage of new technologies like “The Cloud” … but is it safe? How can you be sure you are fulfilling your ethical duties to your client to protect their confidential information?

If you have questions about utilizing cloud technologies in your practice while still maintaining ethical standards of practice then join intellectual property attorney Robert Cogan as he describes what the Cloud is and how you can use this new technology without running afoul of the ethics rules. By taking this course you will reach a basic level of familiarity with what the Cloud is in the context of law practice, be able to identify the ethical obligations that must be met in use of the Cloud, learn the actions the attorney must take in exercising due care when selecting a vendor, recognize significant security vulnerabilities that are not a function of Cloud use and take steps to address these security vulnerabilities. To access the course please click here: Ethics of Cloud Computing.

Additional topics addressed include:

  • Pertinent terms
  • Rules of professional conduct
  • Services
  • SAS
  • Advantages of using the Cloud
  • State ethics opinions
  • ABA opinions & Model Rules
  • Client confidentiality
  • Competence
  • Questions to consider
  • Knowledge requirements for non-technical attorneys
  • Terms of service
  • Practical care
  • Non-technical considerations
  • Social engineering
  • Phishing
  • Trojan horses
  • General guidance

Robert P. Cogan is a business and intellectual property lawyer with over 35 years of experience in both corporate and private practice as well as experience in operating management. His previous experience includes fourteen years as chief patent counsel of a Fortune 200 Company, where he managed the development and enforcement of worldwide patent and trademark portfolios. He has negotiated multimillion dollar agreements, including software licenses, distributorships and joint research projects. Mr. Cogan also has extensive experience in contracting with government agencies including Department of Defense, NASA, and NIH, as well as state agencies.

This CLE course on elder law is currently accredited in the following states:

  • Alaska (AK)
  • Arizona (AZ)
  • California (CA)
  • Connecticut (CT)
  • District of Columbia (DC)
  • Illinois (IL)
  • Maryland (MD)
  • Massachusetts (MA)
  • Michigan (MI)
  • New Jersey (NJ)
  • New York (NY)
  • Pennsylvania (PA)
  • South Dakota (SD)

Attorney Credits offers continuing legal education (CLE) for attorneys in New York and around the country. For more information about CLE in New York please click the following link: NY CLE.

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Juror Privacy … Or a Fair Trial?

By Jason Castillo, Director of Legal Education

There is a major conflict brewing in our American legal system.  The conflict pits the electronic privacy rights of jurors against the Sixth Amendment and the right to a fair trial for criminal defendants.  And last week a California Appeals Court decision bolstered the Sixth Amendment – while possibly undermining the SCA and juror privacy.[1] 

In Juror Number One v. Superior Court (Royster) a Third District Court of Appeal panel ruled that a juror who wrote on his Facebook page about the criminal trial must consent to having his online postings turned over to the trial judge for review to determine whether his misconduct was prejudicial against the defendant.  Juror No. 1 argued unsuccessfully that the compelled consent to the release of his Facbook postings violated his Fourth & Fifth Amendment rights, as well as the Stored Communications Act (SCA).  The SCA is a federal law that limits government access to online communications.

Many commentators believe that the Third Circuit’s decision is the first of its kind.  In reaching the decision the Third District reasoned that the SCA only protects third parties like Facebook from being compelled to disclose information such as Juror No. 1’s postings.  Therefore, Juror No. 1 has no protections under the statute. Many privacy advocates claim that this ruling violates the spirit of the SCA – a statute Congress enacted “to fill a gap in the protections afforded by the Fourth Amendment.”[2]

“With smartphones and mobile devices now ever present in our society, jurors around the country simply can’t resist Google mapping the crime scene or updating their Twitter and Facebook accounts with information about the trial.”

However, it does seem as though many jurors have a problem resisting the urge to tweet, blog and Facebok facts and opinions about their case.[3]  Frustrated judges around the country have watched numerous trials compromised by juror’s electronic misconduct.  These judges have turned tried a few different actions to try and preserve defendants Sixth Amendment rights – including contempt findings, confiscating smartphones and enhanced jury instructions.

The Third District’s ruling may present California judges with a new opportunity during jury instructions to warn jurors not to post to social media websites during trial, and that if they do their writings may be subject to inquiry.  But will this be enough?  New York recently amended its jury instructions to advise against electronic communications in criminal cases, but these provisions do not necessarily apply in civil cases.[4]

“… the extent of Juror Number One‟s ‘legitimate expectation of privacy’ under the Fourth Amendment would depend on the extent to which his wall postings are disseminated to others or are available to Facebook or others for targeted advertising.” – Justice Hall

The court dismissed the Fourth Amendment claims because Juror No. 1 had no “legitimate expectation of privacy in the records.”  While many privacy advocates feel this ruling unfairly intrudes into a juror’s privacy and the SCA, the defendant’s Sixth Amendment right to a fair trial trumps these minor instrusions.[5]  Further, if Juror No. 1 did not want the government delving into his electronic affairs he should have listened to the jury instructions – and stayed off Facebook!

I previously blogged about this case back in April (See: Should One Facebook Post Merit a New Trial?)


[1] The appeals court concluded that the juror’s “privacy rights do not trump [the defendant’s] right to a fair trial free from juror misconduct.”

[2] Juror Number One v. Superior Court (Royster).

[3] See Commonwealth v. Werner, 2012 Mass. App. LEXIS 183 (Ct. App. Mass 2012) (new trial denied without waiting for Facebook to respond to subpoena); People v. Wilson, 93 AD 3d 483 (1st Dept. 2012) (juror made Facebook postings advising she was on a jury and her friends made “foolish” replies relating to trials in general but juror said she was not affected by these comments and decided the case impartially).

[4] See CPL §270.40, Rev’d Jury Admonitions, (Rev’d May 5, 2009) (revised to include warning regarding use of electronic devices).

[5] Further, you would have to be a fool to think you have privacy in a social network in today’s day and age.  There is almost no reasonable expectation of privacy for things you post online.

ABA Suggests Added Duties for Emailing Attorneys

ABA Formal Opinion 11-459 discusses the steps that lawyers must take to address the risk of third parties gaining access to email and text communications with a client.  The Formal Opinion –  entitled Duty to Protect the Confidentiality of E-mail Communications with One’s Client – seems to suggest that lawyers now have an added duty to warn clients of the confidentiality concerns when sending ‘substantive’ client communications via email, text and other electronic means.

A lawyer sending or receiving substantive communications with a client via e-mail or other electronic means ordinarily must warn the client about the risk of sending or receiving electronic communications using a computer or other device, or e-mail account, where there is a significant risk that a third party may gain access.

The main gist of the opinion is that people send emails and texts messages from numerous sources.  People don’t just have one desktop computer that they solely use – now people have smartphones, work on computers in the library or at a hotel, or use other people’s devices to email/text.  Further, your client may be at risk because of the electronic devices they are accessing your emails on – namely their employers computer.  And many company’s written internal policy provide that the company has a right of access to all employees’ computers and e-mail files – this even extends to those relating to employees’ personal matters.  This is troublesome for the confidentiality of this information.

Model Rule 1.6 requires a lawyer to refrain from revealing “information relating to the representation of a client unless the client gives informed consent.”  Therefore, Formal Opinion suggests that the attorneys must advise that the confidential information may be compromised by the computer or other electronic device that the client uses to access the electronic communications.

A lawyer sending or receiving substantive communications with a client via e-mail or other electronic means ordinarily must warn the client about the risk of sending or receiving electronic communications using a computer or other device, or e-mail account, where there is a significant risk that a third party may gain access.

When is the duty to advise triggered?

In the context of representing an employee, this obligation arises, at the very least, when the lawyer knows or reasonably should know that the client is likely to send or receive substantive client- lawyer communications via e-mail or other electronic means, using a business device or system under circumstances where there is a significant risk that the communications will be read by the employer or another third party.

The bottom line is a little bit vague.  If there is a “a significant risk that third parties will have access to the communications,” an attorney must take reasonable care to protect the confidentiality of the electronic communications by giving “appropriately tailored advice to the client.”

What consists of “appropriately tailored advice to the client?”  That’s anybody’s guess.  However, I would suggest an appropriately tailored line or two addressing these concerns in your email disclaimer.

Further Resources:

ABA Formal Opinion 11-459

ABA FYI: Playing it Safe With Encryption

Legal Industry Series, Part 1: Are Lawyers Required to Encrypt Client Email?

What’s the Difference Between Email and a Pager?

Since I have a science background, the intersection of law and technology has really fascinated me over the last few years (I attended UCSD and studied cellular and molecular biology as an undergraduate). We all knew that the technology was coming and that it was going to revolutionize our lives, we just didn’t know how it was going to affect us. Aside from people now building farms on Facebook and kids being unable to put the phone down – there are many changes in society that have resonated into the law. While many attorneys may be slow to accept and to adjust to these new technological changes in society they can no longer be ignored and our courts are crafting new precedents every day.

Of late, one crucial question that has yet to be fully resolved centers on cell phones, text messaging, an employee’s right to privacy, and the employer’s right to monitor. A reader posed this question on the Attorney Credit’s LinkedIn Discussion post on Friday after he read an earlier blog post on the same subject. The question posed:

Is it a violation of privacy for an employer to read your personal texts?

My answer – like many legal answers “it depends.”

This has turned out to be an extremely complicated question and the answer depends on many specific factors and what part of the country you are located in. There has been a split amongst the courts in this country and we are currently awaiting guidance on the matter from the SCOTUS.

A few weeks ago the Supreme Court heard oral arguments in City of Ontario, Calif. v. Quon, a case that will clear up some of the confusion. However, its application may be practically limited because of its specific set of facts. At the appellate lever, the Ninth Circuit had held that the city violated Quon’s privacy rights when it reviewed transcripts of the texts.

In Quon, the general issue is whether an employee has a reasonable expectation of privacy in their cell phone text messages. It is a topic I blogged about back in December, and although it does seem like a crucial case on the subject, the holding may be more limited in practice. First, a public – not private – employer was involved in the case. Second, the phone was owned by the police department, but Quon paid for overages when he exceeded the text message limit set by the police and he was off-duty at the time the text messages were sent. Lastly, Quon’s police sergeant subpoenaed Arch Wireless for the records – something a private employer would have a tough time accomplishing. At the appellate level, the Ninth Circuit had held that the city violated Quon’s privacy rights when it reviewed transcripts of the texts.

This has been a hot button topic in the last few months and a quick search will reveal that many blogs have covered the topic. As reported by Law.com, it is not clear which direction the Supreme Court will go on this issue and there are many facts that must be dealt with. What is an employee’s “reasonable expectation of privacy” in their electronic communications? Are texts the same as email or a phone call? Can an employer completely disclaim an employee’s right to privacy in all digital communications by inserting such language in the AUP (Acceptable Use Policy)?

Of course, I enjoy blogging about this topic and it highlights the tricky issues we all face in our new electronic world. One of the main arguments that Quon’s lawyer presented was that sending a text message is like sending a letter. When you send a letter, the government is not supposed to seize and review it at the Post Office. However, is communicating by text the same as sending a letter through the U.S. mail or an email through an ISP?[1]

These issues even invoke the Constitution and Deputy Solicitor General Neal Katyal cautioned the Court about generalizing Fourth Amendment rules in this area. As he aptly point out the technologies are “rapidly in flux” and expectations of privacy have not been as clearly formed as in traditional Fourth Amendment areas, such as homeowners putting trash to their curbs. However, I find this rationale to be flawed for one main reason – the law will never catch up to technology. Technology moves way too fast for the law to ever keep up at the same pace.

One last issue to ponder … is the Supreme Court even equipped to properly decide these issues? During oral arguments, Chief Justice John Roberts asked what the difference was between an email and a pager. And this body will continue to craft the law in this area for years to come …. let’s hope they have some tech-minded clerks!

[1] This is a very unsettled area of law. In Rehberg v Paulk, the 11th Circuit recently held that a party has no privacy rights to email because email is “information you have turned over to a third party.”