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April 20, 2010

He Felt So *Violated*

Years ago when the blog princess was in school, one of her law profs used to begin every semester with a throwaway line about the inalienable right to make an ass of yourself:

“I just don’t know how you tell what is reasonable,” Chief Justice John G. Roberts Jr. said. “I suspect it might change with how old people are and how comfortable they are with the technology.”

The Supreme Court has said the Fourth Amendment, which forbids unreasonable government searches, figures in the analysis when public employers search their employees’ offices and files.

The chief justice appeared sympathetic to the police officer in the case, Sgt. Jeff Quon of the Ontario Police Department’s SWAT team, who had received mixed guidance from his superiors about the status of messages sent on his pager. The messages included communications to and from his wife and his mistress.

The blog princess is reminded of a somewhat similar case involving her next door neighbor. This happened many moons ago.

The neighbor in question was married and had a child. For reasons that remain unclear, the gentleman decided it would be a good idea to have an affair with another married officer. Moreover, he decided it would be a good idea to have naughty conversations with said officer during working hours using his personal cell phone.

What he apparently failed to consider is that cell phone transmissions can be intercepted. A local ham radio operator picked up these conversations, figured out that two fairly senior officers were engaged in an adulterous relationship, and turned his sorry tuckus in.

Now I suppose this gentleman and his married lady friend may well have considered that their privacy rights had been well and truly trampled upon. On the other hand, no one has a greater interest in protecting your privacy than you do. If you have something to hide, then it stands to reason that you should do everything in your power to keep it hidden.

Having been married for many moons, I have been known to send mildly racy messages to my spouse during working hours. I do not, however, send anything to his work address that I would not wish 3rd parties to read. And I do not use my work email to send such messages.

All of which leads me to think that texting your mistress during working hours on your employer's cell phone is probably not a stellar idea. But that's just me.

Moron.

Posted by Cassandra at April 20, 2010 08:26 AM

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Comments

The senior partner in my old law office used to tell us new guys about the dangers of talking trash about any judge. He said we should never criticize a judge in public, and in the word "public" he included the privacy of our homes and offices.

Years of doing litigation in which much of the evidence was in the form of email taught me that we should never say anything in an email we wouldn't want published. There are some howling stinker emails out there. Businessmen who conduct themselves shabbily used to be pretty careful not to commit themselves to writing, but for some reason when email came along, they began communicating with each other in writing in the same unguarded way they had been used to talk in person or on the phone. The results were startling. They also had no real notion how hard it is to erase all the copies of an incriminating email, or to keep their lies straight.

And a lot of lawyers didn't know any better than to trash a judge in an email, either.

Posted by: Texan99 at April 20, 2010 10:24 AM

Growing up in a small town, I was raised by my mama never to say anything bad about anybody outside of your own home; "You never know when one of their cousins might be listening," she said.

On the other hand, I'm not sure about the example of the people taping your private cell phone conversations and turning them in to the authorities. Yes, cell-phones are broadcast; on the other hand, I think your privately-paid-for cell phone carries a certain expectation that your privacy will be respected. There need to be some cases in which society/government can be compelled to respect privacy even where it is possible for them to do otherwise.

As technology improves, for example, it could be that police could be able to see through walls. This would allow them to, with a glance, see that you were doing whatever you were doing in your home. Should you be doing illegal things in your home? No; but at the same time, the mere fact that a technology exists that would let them breach your reasonable expectation of privacy in private property does not mean that they should be able to do so. That's the whole idea behind warrants; we're not supposed to be subject to search and seizure for no reason at all.

Posted by: Grim at April 20, 2010 10:37 AM

They also had no real notion how hard it is to erase all the copies of an incriminating email, or to keep their lies straight.

Ask Michael Mann, or Phil Jones and the Motley CRU about the wisdom of "talking shop" via e-mail, then discussing how to avoid FOI requests for release of those e-mails -- via e-mail.

And people *still* don't understand that when they're using a cellphone, they're taking over a *radio*, not some invisible telephone wire.

Posted by: BillT at April 20, 2010 10:38 AM

...on the other hand, I think your privately-paid-for cell phone carries a certain expectation that your privacy will be respected.

There have already been court rulings that a person talking on a cellphone does *not* have the right to expect privacy, based on the nature of the communication medium -- there's a reason it's called *broadcasting*...

Posted by: BillT at April 20, 2010 10:43 AM

The court often disagrees with me where limits on government authority are concerned; I still think I'm right about where we ought to draw the line.

Posted by: Grim at April 20, 2010 10:50 AM

I agree that it's something of a grey area Grim, but in this case we're not talking about "government" looking through your walls via technology.

We're talking about a private citizen doing it.

I still think the old "eavesdropping" rule applies here: if you say something at a time and place where it is possible for people to overhear you (even though arguably they should not be listening in on your conversations), it's a bit much to scream "STOP INVADING MY PRIVACY DAMN YOUUUUUUUU!!!!"

The interesting thing here is that "presumably" (there's that word again!) the ham radio operator did not buy or operate his radio with for the express purpose of eavesdropping on cell phone conversations. And if I remember correctly, that was the case (he didn't go looking for cell phone transmissions). So then the question arises: if, in the course of doing something, a private citizen overhears evidence of illegal/wrong acts, what is his moral duty?

Should he just ignore it? One could perhaps invoke the question of potential harm: obviously if you intercepted evidence that someone was plotting to kill another person, ignoring it is the wrong answer. But one could argue the harmful consequences of doing nothing are less clear here.

I honestly don't know the answer to this one. Likewise, I would distinguish between IT people who went looking for salacious text messages on a company owned phone and those who encountered them while performing a legitimate job related task.

Posted by: Cassandra at April 20, 2010 10:57 AM

On the other hand, I'm not sure about the example of the people taping your private cell phone conversations and turning them in to the authorities. Yes, cell-phones are broadcast; on the other hand, I think your privately-paid-for cell phone carries a certain expectation that your privacy will be respected.

I'm with Cass and Bill on this one, Grim. A "reasonable expectation" of privacy is pretty clear if you're talking loudly and there's an open window beside you, it's NOT reasonable to assume anyone outside that window could listen in. If you use a HAM radio to broadcast a message, you similarly do not have any reasonable expectation of privacy. With a land line phone, you have a "reasonable expectation" of privacy... UNLESS you're talking loudly next to an open window.

A cell phone is nothing more than a tight band HAM radio when you get right down to it. And given the habits of most folks on the infernal machines, they're talking loudly enough that their conversations are hardly private anyhow. But be that as it may, just as a phone conversation CAN have a "reasonable expectation" of privacy, so can a cell phone, but it requires action on the phone user's part. Get a cellphone that frequency hops. Use an encrypted phone. Or how about this, use a land line.

To be fair, I don't own a cellphone. I find it's too convenient to be able to honestly answer "you can't call me this weekend, I won't be home." My wife always knows where I am (she's either with me, or has the number where I will be), and she's the only one I like to have unlimited access to me. A cellphone seems to turn into another chain tying you to the office, or others you don't really want to talk to. And screening calls only gets you so far (especially if you have voicemail).

And as for the ethics of the HAM radio operator turning them in... heck, he was aware of a felony in progress. It might have gone very poorly for him if he had failed to report it (and they found out he failed to). Sure, adultery is not murder. But one, it's harmful to good order and discipline of the unit (especially since both involved were married officers), two it IS still a felony regardless of how "severe" we want to think of it, and three... I don't actually have a three. Sorry.

Posted by: MikeD at April 20, 2010 11:21 AM

Does this mean the assembled villainry can send you Naughty Messages?

Just checking. I hafta know what my limits are. You might get another email about Gen. Patraeus' College Comments.

Privacy. It also goes without saying that if you are not doing anything involving le stupide, you wouldn't have anything to hide.

Posted by: Cricket at April 20, 2010 12:16 PM

And given the habits of most folks on the infernal machines, they're talking loudly enough that their conversations are hardly private anyhow.

Or anything else.

I've been on conference calls where the background noises included the sound of a flushing toilet.

Posted by: BillT at April 20, 2010 12:30 PM

Does this mean the assembled villainry can send you Naughty Messages?

Only if they're *interesting* naughty messages :p

Seriously, my threshold for "naughty" is pretty low and would probably bore most of you to tears.

We just had an email conversion at work so I'm now forced to use Outlook. One of the "benefits" of the conversion is that I can use "Communicator" if email is just too freaking un-immediate for me.

Aye yay yay.

Posted by: Cassandra at April 20, 2010 12:57 PM

I've been on conference calls where the background noises included the sound of a flushing toilet.

I did that to some pompous jerk once. I was in the bathroom (nuff said), he walks in, clearly talking on his cellphone, having the conversation loudly enough that I learned more about his dietary habits than I cared to. So I decided it was time for a courtesy flush... or three. He did sound irate, but continued on with his phone conversation anyway.

Not my fault man, I'm not the one who brought his conversation into the echo chamber.

Posted by: MikeD at April 20, 2010 01:01 PM

Only if they're *interesting* naughty messages :p

OOOOH!! Naughty but interesting, huh? Ok...

I totally didn't take out the garbage last night. AND I put a new roll of toilet paper on with the flap UNDER the roll rather than over. AND I took my shoes off... and left them RIGHT in the middle of the floor!

I'm so bad!

Posted by: MikeD at April 20, 2010 01:03 PM

Now we're talking :p

Posted by: Cassandra at April 20, 2010 01:07 PM

I've been on conference calls where the background noises included the sound of a flushing toilet.

Heh :)

I have a bad habit of multitasking when I'm on the phone with friends. Because, you know, talking to another human being is so self indulgent :p

So often I run around the house and pick it up while I'm on the phone. I have actually cleaned my bathroom while I was on the phone with Carrie and then suddenly realized that she would have no real way to know that I just flushed the toilet after cleaning it as opposed to... ummm... yeah.

But I don't think I would do that if I weren't on the phone with someone I knew very well... like my Mom :p

Posted by: Cassandra at April 20, 2010 01:10 PM

Only if they're *interesting* naughty messages :p

Well, if you are going to have boundaries then let the negotiations begin!

I insist that this policy be spelled out explicitly and details what you plan on compensating me with for restricting myself to it. :-)

Posted by: Yu-Ain Gonnano who's real sorry, but just had to do it at April 20, 2010 01:31 PM

I don't think I would do that if I weren't on the phone with someone I knew very well...

My bud Norm was on the phone with his wife, explaining that he'd be working late on training folders and I, at the adjoining desk, slid up and, in my best Flip-Wilson-as-Geraldine voice said, "Have 'nother beer, Norm-Honey?"

Posted by: BillT at April 20, 2010 02:50 PM

Was Norm's wife named Killer?

Naughty Messages: This one involves getting down and dirty. I watered all my plants/vegetables, gave them a motivational pep talk--"I won't tear you out by your roots if you will bloom where I plant you--" and then, I soiled them.

Posted by: Cricket at April 20, 2010 03:57 PM

...and then, I soiled them.

OK, that was funny.

I have no idea why I love plays on words so much. I'm sure that says nothing good about me, psychologically. Oh well!

Posted by: Cassandra at April 20, 2010 04:20 PM

When cell phones were analog, hams could sometimes tap into a conversation, even though the freqs used were nowhere near where the ham bands are. With digital cellphones, which they are nowadays, I don't think that anyone could tap them without very specialized very expensive equipment. The NSA taps into calls going overseas at the cable/satellite interfaces; AFIK, they can't yet tap into normal cellphone conversations.

Posted by: Rex at April 20, 2010 09:07 PM

I have no idea what the current state of the technology was back then, but this was way before anyone I knew owned a cell phone :p

I suspect that back then, cell phone conversations weren't exactly a dime a dozen!

Posted by: Cassandra at April 20, 2010 09:11 PM

I've known for a long that that any communications on employer-provided equipment/technology has no expectation of privacy. And, this guy being a cop, he also needs to keep in mind his employer-provided cell phone would be subject to FOIA requests....

Posted by: Miss Ladybug at April 21, 2010 02:10 AM

I suspect that back then, cell phone conversations weren't exactly a dime a dozen!

They still aren't, although mine only costs 300 dinars a minute.

Posted by: BillT at April 21, 2010 02:38 AM

I have no idea why I love plays on words so much.

Because the shortest distance between two puns is a straightline?

Puns are the highest form of humor. And you know your pun was the best if you cause all nearby listeners to flee your presence screaming in despair.

Posted by: MikeD at April 21, 2010 09:34 AM

Punsters should be drawn and quoted.

Posted by: LittleRed1 at April 21, 2010 01:47 PM

I don't care who you are, that's punny right there!

Posted by: MikeD at April 21, 2010 02:02 PM

*groan* :)

Posted by: Cassandra at April 21, 2010 02:05 PM

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