Posted On: July 27, 2010

US Supreme Court Holds State Employer May Investigate Employees’ Electronically Stored Data When Search is Legitimately Work-Related

The United States Supreme Court recently heard arguments in the case of Ontario v. Quan, wherein a police officer brought suit against his police department for invasion of privacy. The police department had issued texting/paging devices to its officers for the purpose of work-related use. All of the officers were allotted a predetermined amount of text messages and/or data transfer, which was to be paid by the employer. Anything transferred above that which was allowed would be the responsibility of the officer personally.

After an audit of the cellular bills showed many officers were exceeding the allotted messaging allowance, the police department decided to conduct an investigation into whether or not the employee allowance needed to be raised. The purpose of the search was to ensure that officers were not being charged for work-related use. In conducting the investigation, the police department contacted the text-messaging carrier and sought a print-out of the officers’ monthly messaging statements, including the actual messages which were sent.

Upon investigation, it was determined that one of the officers had used his messaging device for personal and improper use. Many of the messages sent and/or received from his device were sexual in nature. Following confrontation by his superiors, the officer brought this instant action claiming the police department breached his reasonable expectation of privacy and that the investigation conducted should have required a search warrant.

The Court held that the officer did in fact have a legitimate privacy interest in his text messages, despite the device being work-related. Nevertheless, the search conducted was not intended for any disciplinary or criminal purpose, but rather was motivated by a legitimate work-related purpose; to ensure officers were not being charged personally for work-related use. The Court held the search legal under the “special needs” exception of the warrant requirement; The U.S. Supreme Court has recognized that, in certain limited circumstances, the government's need to discover latent or hidden conditions, or to prevent their development, is sufficiently compelling to justify the intrusion on privacy entailed by conducting a search without any measure of individualized suspicion.

It is important to note that the Supreme Court’s decision applies to State employers and not necessarily private ones. In other words, the Court’s decision does not speak to the rights of a private employer to monitor e-mails, text-messaging, etc., from work issued devices. Further, the Court declined to comment on what a person’s “reasonable expectation of privacy” should be in this modern world of ever changing technology, choosing rather to deal with the issues of the case at bar and saving a broad determination for another day.

Posted On: July 12, 2010

United States Court of Appeals Hears Arguments in Two Students Cases, Suspended for “Bashing” School Officials on the Internet

A recent hearing held before the United States Court of Appeals for the Third Circuit involved constitutional issues of free-speech, as applied to two students suspended for creating fake MySpace pages claiming to be their school principals. One student, a high school senior from Pittsburgh, was suspended in 2005 when he created a fake MySpace page to parody his principal. On the profile page, the student accused his principal of using steroids, smoking marijuana and being a drunk. The student did not create the MySpace page while at school, or even on school grounds, rather creating the site on his grandmother’s computer located in her basement. Upon discovery of the website, the student was suspended, but later had his suspension overturned by a Federal three-judge appellate panel. The panel found that the student did not create the site on school grounds, the MySpace page never caused a substantial disruption in the high school and the student had been within his constitutional first-amendment rights. The panel equated the MySpace page as no different than had the student seen his principal at a Major League baseball game and called him profanities. The panel’s decision was appealed by the school district.

The second case arose out of a 2007 incident where an eight grade student from Schuylkill County, Pennsylvania also created a fake MySpace page for her principal, “self-proclaiming” he was a pedophile and sex addict. She created the page as retaliation for discipline she received resulting from a dress-code violation at the school, and did so from her parent’s home computer. The student allowed only twenty-two others access to the fake profile she had created. One of those other students printed out the fake profile and submitted the printed version to the middle school principal depicted on the MySpace page. The student was then suspended for ten days. Upon her appeal, another Federal three-judge panel upheld the suspension, indicating the girl could be punished for “lewd and vulgar” speech, and that the language used on the internet could have supported criminal charges. The student’s parents appealed the decision.

Both cases are now before the United States Court of Appeals for the Third Circuit, in Philadelphia, with arguments being heard last month but a decision not expected in the immediate future. The Court must examine many issues before rendering an Opinion; most importantly whether or not the students’ actions are protected by the Constitution, specifically the First Amendment’s right to freedom of speech. Case law seems to indicate that a student can only be punished if his or her speech incites a substantial disruption of school activities; not the case in respect to both students here. A 1996 Supreme Court decision also held, however, that there is no Constitutional protection for lewd, vulgar, indecent and plainly offensive speech in school.

This leads to the next issue that the Court must determine; the internet and how it eliminates boundaries and territories. Both students argue that they created the MySpace pages from their home computers and that no activity relating to these incidents occurred on school grounds. Attorneys for the school boards argued that with the creation of the internet, there are no longer boundaries between school and home. Activities relating to school, even though performed on a home computer, can instantaneously be disseminated across school grounds. Therefore, the school board argues that although the students created the websites from home, the fact that they were disseminated and/or seen by other students and school officials via the internet makes the students actions to have occurred on school grounds.

Those accused of crimes, or administratively punished by “state” officials, are subject to the protections of the Constitution of the United States. An experienced criminal defense attorney ensures a defendant’s rights are protected. If you have been charged with, or convicted of an offense, you still have constitutionally protected rights which the Law Offices of Marc Neff will protect. For a confidential consultation, please contact our office at 215-563-9800 or via email at

Posted On: July 1, 2010

Superior Court of Pennsylvania Upholds Act which Allows for Civil Detainment of Offenders Deemed Sexually Dangerous

The Superior Court of Pennsylvania recently heard a case which challenged Pennsylvania Statute, Pa. C.S. §6403, which allows for the civil detainment of those deemed sexually dangerous. In Re A.C. involved an appellant sentenced to one year of involuntary in-patient treatment for potentially sexual violence. In accordance with the Act, the defendant must have been adjudicated delinquent as a minor for an act of sexual violence, have been sentenced to a juvenile facility until age 20, and be found to be in need of involuntary treatment due to mental abnormality or personality disorder. Those who qualify under the Act are to be evaluated by the Sexual Offender Assessment Board on an annual basis. According to the act, these evaluations can continue perennially until evidence of sexual danger by the defendant no longer exists.

In the case cited above, the defendant was examined by the Sexual Offender Assessment Board in 2004 and was deemed to have a mental disorder which resulted in a serious deficiency in his ability to control sexually violent behavior. Specifically, the Board found that defendant would have rape fantasies, which exemplified defendant’s hidden sexual aggression.

The defendant challenged the Act on its constitutionality. Defendant argued that the Act infringed upon his liberty interest, specifically the indefinite continuation of the in-patient treatment. The Court held that there is a compelling interest of the Government to detain those deemed sexually dangerous as protection for the greater public. The Court held that so long as a person is deemed to suffer from such a mental disorder, they will remain dangerous to the public. The detainment of said individuals is a small price to pay for the safety of the public, according to the Court. The Superior Court affirmed the lower court’s ruling, thereby upholding Pa. C.S. §6403 as constitutional. It will be interesting to see whether or not the case is brought before the Pennsylvania Supreme Court on appeal.

Those convicted of crimes are still subject to the protections of the Constitution of the United States. An experienced criminal defense attorney ensures a defendant’s rights are protected during legal proceedings. If you have been charged with, or convicted of a sexual offense, you still have constitutionally protected rights which the Law Offices of Marc Neff will protect. For a confidential consultation, please contact our office at 215-563-9800 or via email at