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Legal Brief                                                         Page 10

 

Private E-mail Going Public

 

BY MAREE SNEED

MareeSneed

A superintendent uses her school district-issued laptop, iPad and district e-mail account during the school day to send sexually explicit messages to a man who is not her husband. The superintendent’s exchanges surface after a local newspaper makes a public records request. The contents become front-page news.

Before the school board can question her actions, the superintendent submits her resignation but complains she has a right to privacy. Does she?

In short, no. Generally, a superintendent should have no expectation of privacy in e-mails sent from school district-owned devices using a school district e-mail account.

Rules of the Road
School districts are wrestling with how to manage communications sent using desktop and laptop computers, iPads, cell phones and other technology owned by the district.

No definitive guidance is available from the federal courts about the scope of an employee’s expectation of privacy when using employer-owned technology. However, lower federal courts across the country generally have held that the following can result in an employee having no reasonable expectation of privacy in communications sent through employer-owned technology: (1) an employer policy explaining acceptable use of employer-owned technology and the employer’s ability to monitor employee use, and (2) the employee’s written (or other) acknowledgment of such policy.

To protect the district and set employee expectations, the best approach is to have an acceptable use policy, a document that explains to employees the rules of the road from the school district’s perspective. Many policies already probably forbid the exchange of sexually explicit communications, but school districts ought to consider other policy provisions.

The foundation of the policy should be straightforward. All uses of school district technology resources must be for purposes that promote the educational mission of the school district. Employees’ activities should be related to their daily quest to serve the district and forward its goals.

School districts should determine whether they want their policy to acknowledge that employees may engage periodically in activities unrelated to their work during their workday. The district may want to qualify this acknowledgement, however, by explaining that any such nonwork activities should be kept to a minimum.

The policy should make clear that e-mails, text messages and other communications sent using district-owned technology by employees may be monitored, archived and reviewed by the district — regardless of whether such communications are related to school district work. (If the policy states the district will monitor use, the district should engage in regular monitoring.)

The policy should alert employees that most of their e-mail communications are subject to public records requests. In other words, they should not send communications if they would not want to see them appear as headline news.

A Test Drive
Once the school district adopts an acceptable use policy, training for all employees is essential. As recent headlines about an Ivy League university illustrate, even when employees sign such policies, they may not fully appreciate how the policy will apply to them. Some faculty at Harvard were shocked to learn in March that the university had examined the e-mails of 16 deans as part of an internal investigation.

Actively training employees about the district’s acceptable use policy will help set appropriate employee expectations. You can be creative in doing so. Use role plays during orientation or other interactive approaches to help employees better appreciate the concepts. Some school districts may want to require employees to reaffirm annually they have read and understood the district’s policy; require affirmation each time the employee logs on to the district network; or provide a banner on each login screen reminding employees their communications may be monitored.

Developing an acceptable use policy, actively educating employees about that policy and revising the policy to respond to new developments in technology will help each school district fulfill its educational mission — and perhaps keep educators out of embarrassing news headlines.

 

Maree Sneed is a partner with Hogan Lovells in Washington, D.C. E-mail: maree.sneed@-hoganlovells.com. Esther Haley Walker, an associate in the firm’s education practice, contributed to this column.

 

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