Federal Court Awards Immunity To Sheriff Who Searched An Officer’s Private Dropbox Account Without A Warrant
from the wrong-but-apparently-a-new-way-of-being-wrong dept
But it is a good discussion of some issues that don’t receive a lot of attention. Like, how is “reasonable” defined in terms of searches when both the searcher and the searchee are government employees? And how do company IT policies apply to searches of private accounts when the company is actually the government… and the private account is linked to a government email account?
The plaintiff is a government employee who perhaps got a little bit too carried away helping out the people producing a law enforcement-oriented TV show. From the decision [PDF]:
Plaintiff Steven Bowers was a sergeant for the Taylor County sheriff’s department. In 2017, the department started working with a television show called Cold Justice, a true-crime series that investigates unsolved crimes. The department gave the crew members access to one case file, but Bowers began sharing other case files with them, even though he didn’t have permission to do so. After Bowers admitted what he had done, Sheriff Bruce Daniels directed IT director Melissa Lind (formerly Melissa Seavers) to try to access Bowers’ Dropbox account, where Daniels believed that Bowers had stored the files. Lind was able to do so because the Dropbox account was linked to Bowers’s work email. Lind changed Bowers’s account password, accessed the account, and found the case files.
Bowers sued the IT director and the sheriff, alleging violations of his Fourth Amendment rights via the warrantless search of his private Dropbox account.
The court says a lot of things go into its determination that 1) rights were violated, but 2) immunity still applies, starting with this list:
The general rule is that a warrant is required for searches of private property. But there are more lenient standards involving some searches conducted by government employers. The Dropbox account was Bowers’s personal account, and it wasn’t stored on county servers, factors tending to support Bowers’s contention that a warrant was required. But other factors point the other way, including that Bowers linked the account to his work email and he placed work files taken from a work computer into the account. The account was password protected, but Bowers had shared access with several others.
The court notes the Supreme Court hasn’t exactly produced a wealth of case law that applies to cases like these, where both parties work for the government. Complicating things are choices Bowers did (like share documents using the account) that made his account perhaps a bit less private than accounts only accessible by their owners.
The defendants claimed the county’s IT policy gave it the unilateral right to do what they did, given that employees agreed to clauses stating they had no expectation of privacy when using department computer equipment. The court isn’t quite as charitable in its reading of the policy.
The policy states that employees have no expectation of privacy for material “on Taylor County equipment,” but it’s undisputed that Bowers’s Dropbox account was stored on the cloud, not on county servers. Defendants also point to the language that the county may “access any electronic communications at any time.” But Bowers’s Dropbox account wasn’t an electronic communication, so that provision doesn’t apply either.
This leaves the IT policy provision that gives the county the right to “monitor all information technology usage.” Defendants emphasize the word “all,” contending that it extends beyond the county’s own equipment. But that’s not a reasonable interpretation, as it suggests that the county could monitor its employees on any personal electronic device anytime, anywhere, and for any purpose. The more reasonable interpretation is that the policy applies to technology use that is either done while on the job or on a county device.
The fact that Bowers shared files from this Dropbox account also doesn’t weigh against his expectation of privacy… at least not as much as the defendants would like it to.
Linking the account to his work email blurs the boundary between his work and private spaces, but the county’s IT policy says nothing about monitoring private accounts that are linked to work email. In the absence of a clearer notice from the county, Bowers was entitled to assume that a private account was private.
As for sharing the account with the TV crew members and a friend, that doesn’t mean that Bowers was inviting anyone to view his account. By way of comparison, homeowners don’t forfeit a reasonable expectation of privacy against intrusions by the police if they invite friends to stay with them.
That last paragraph takes a pretty big swipe at the Third Party Doctrine, which assumes (nearly) anything shared with private companies to utilize goods and services can be obtained without a warrant. This statement makes it clear this court does not believe people give up any expectation of privacy just because they’ve shared information with others.
The court also discusses the terms of service Dropbox users agree to, which says Dropbox may access files at any time. Again, the court says assumptions made by the defendants about privacy expectations are wrong. And, although the court goes out of the way to point out this part is not a discussion about the Third Party Doctrine, it still seems pretty applicable.
Bowers’s claim is about restricting access to his account, not protecting the particular files at issue or preventing third parties from sharing the files. One can lose a right to keep information private by disclosing it to the public, but that doesn’t mean the government can force entry into someone’s home on the ground that the home contains public documents. As another example, if someone sends an email to a friend, the Fourth Amendment won’t prevent the friend from sharing the contents of the email with the police, but that doesn’t mean the police are entitled to hack an email account because all the emails are being shared with a third party.
This is a very good discussion of issues that are likely to resurface repeatedly as more storage of personal information and files moves to the cloud and away from local drives. But it’s only the beginning of this discussion — one being made without much assistance from precedential decisions. And that means the participants in the Fourth Amendment violations are immunized from this lawsuit.
But whatever the limitations of defendants’ authority, Bowers cannot prevail by showing that defendants have failed to disprove his claim. It is his burden to show that the law was clearly established. And the bottom line is that Bowers hasn’t cited Supreme Court or Seventh Circuit law clearly establishing that he retained a reasonable expectation of privacy against intrusions by the county despite his linking the account to his work email, putting confidential work files from a work computer in the account, and sharing access to the account with others. The precedential authority he relies on provide the general principles that provide the foundation for his claim. But that case law doesn’t show that the contours of the law were so well defined that it would be clear to a reasonable officer in defendants’ position that Bowers had a reasonable expectation in keeping his Dropbox account private from the county. In the absence of such a showing, defendants are entitled to summary judgment on the basis of qualified immunity.
And that means Bowers won’t have any luck suppressing this evidence in his criminal case. He’s charged with misconduct in public office and, presumably, the evidence against him was generated by this search of his Dropbox account. If the defendants can obtain immunity here, the trial court will likely find (if it hasn’t already) that even if the Fourth Amendment was violated, the violation was done in good faith.
That being said, it’s a well-written decision that’s willing to discuss issues that have somehow — despite it being 2022 — haven’t generated much precedent. And, at least in this court, the Third Party Doctrine isn’t nearly as expansive as the government believes it is, which will make it a handy decision to refer to in future litigation dealing with these issues.