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The Motor City’s embattled mayor, who is embroiled in a scandal in which text-messaging triggered criminal charges against him, is seeking refuge in a recent federal appeals court ruling in California. The 9th U.S. Circuit Court of Appeals ruled last month that a wireless phone company violated federal law when it released a police officer’s text messages — some of them sexually explicit — to his employer. Quon v. Arch Wireless Operating Co. Inc., No. 07-55282. Jim Parkman, one of Detroit Mayor Kwame Kilpatrick‘s lawyers, cited the ruling last week in a motion to suppress text messages that show that the mayor allegedly lied about an affair, and his alleged role in the firing of a police officer during a 2007 whistleblower trial. Parkman of Birmingham, Ala.’s Parkman, Adams & White is seeking to have the text messages dismissed as evidence against the mayor, who faces perjury and obstruction of justice charges. “That case was dead on point, basically, with our case,” said Parkman, who claims Kilpatrick’s text messages were illegally released, and that his privacy rights have been violated. “That’s real hope for us,” he said of the 9th Circuit ruling. Kilpatrick and his former chief of staff were charged on March 24 with alleged perjury, obstruction of justice and misconduct in office in a 12-count indictment issued by Wayne County prosecutor Kim Worthy, who said the pair’s text messages contradicted their sworn testimony in court. TOO CASE-SPECIFIC? But several labor and employment attorneys and privacy law experts believe the 9th Circuit ruling is too case-specific to offer blanket privacy protection to employee text messages. “Private employers should not be looking at this decision as the death knell for their monitoring policies,” said Brian Hall, a management-side attorney at Columbus, Ohio’s Porter Wright Morris & Arthur. “I think that those were pretty specific facts in that [9th Circuit] case,” Hall said. According to court documents, the employer targeted in the California case — the Ontario, Calif., police department — had a policy that communications on company-supplied equipment were subject to review and not private. It also, however, allowed officers to avoid audits if they personally paid for text messaging overages. The court held that, given that policy, the police officer had an expectation of privacy, and that his employer wrongfully ignored it. That does not mean that employers can’t audit employee’s text messages, said Jane Lewis Volk of Pittsburgh’s Meyer, Unkovic & Scott, who advises employers on privacy and employment law issues. She views the ruling as “a good solid warning” to employers to have a no-privacy policy that notifies employees that their text messages can be viewed or monitored by the employer. “The employer should notify the employees clearly — best if by written policy — that the device is the property of the employer and there should be no expectation of privacy,” Volk said. But that’s where employers tend to fall short — enforcing such communications policies, said Teri Dobbins, an associate law professor at Saint Louis University School of Law who has lectured and written about privacy law. Like employment attorneys, Dobbins doesn’t view the 9th Circuit ruling as a blanket prohibition on text-message auditing in the workplace. “I don’t think employees should feel confident that no matter what they do that it will remain private because I don’t think the opinion goes that far, by any means,” Dobbins said. STICK TO THE RULES But the opinion does warn employers that if they do have a no-privacy policy that subjects text messages to audits, they had better stick to it. “One of the problems that employers have run into is that they have a policy, but they don’t follow it,” Dobbins said. “And that was the case in the 9th Circuit [case].” That’s also the case in Detroit, said Herschel Fink, a First Amendment law expert and lawyer for the Detroit Free Press, which first reported the mayor’s text messages in January. Fink of Detroit’s Honigman Miller Schwartz and Cohn noted that the city of Detroit has a policy — signed by the mayor himself — that puts all city employees on notice that their electronic communications are not private and are a matter of public record. “He’s the top guy. It’s his policy. He can’t disclaim it,” said Fink, who believes the 9th Circuit case is far different from the mayor’s criminal case. “Its just distinguishable on its facts, particularly the assurance of privacy that was given to the police officers there that wouldn’t apply here because of Mayor Kilpatrick’s own written policy, which he can hardly claim was contradicted by anyone else,” Fink said. Editor’s Note: NLJ reporter Tresa Baldas is married to Detroit Free Press reporter M.L. Elrick, one of two reporters who broke the text message story and continues to cover the mayor.

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