Private Text on Company Phones
BILL TUCKER, CNN CORRESPONDENT (voice-over): Texting has already changed the social scene and the workplace. Now it's about to change the legal landscape. The Supreme Court has agreed to hear a case involving an Ontario-California police officer who use the government- issued texting pager to send private, personal text. Some of which were explicitly sexual. Department policy allowed for personal use. So when the police department requested records of the texts, the officer, Sgt. (Kuan) sued saying his privacy had been violated. His lawyer explains.</s>MICHAEL MCGILL, ATTORNEY: They never put out a policy writing. Never explained to them unequivocally that it applies, that there is a no privacy policy.</s>TUCKER: Kuan lost his first trial but it California's 9th Circuit Court of Appeals overturned the decision agreeing with the sergeant. Now the Supreme Court is stepping in and putting the case on their calendar for next year.</s>ORIN KERR, GEORGE WASHINGTON UNIVERSITY LAW SCHOOL: This will be the first case that the Supreme Court has ever taken, which will give the court the opportunity to apply the constitution to text messages and by extension to the internet. It could be an extremely important case.</s>TUCKER: At the core of the case is the question of an expectation to a reasonable right of privacy. Should or can an employee expect his or her private communications to stay private? Lawyers arguing for employers say the expectation doesn't exist for employees working on company-issued equipment.</s>CHERYL WILLERT, CIVIL DEFENSE ATTORNEY: If I have a piece of equipment, whether it's a telephone, whether it's a computer, whether it's a video monitor, and it belongs to me. And I allow you in the furtherance of your performing a job for me for which you were hired, I should clearly have the ability to monitor what is going on.</s>UNIDENTIFIED MALE: Employers need that ability. It's important to the way employers run their business.</s>TUCKER: Privacy advocates argue that while the equipment belongs to the boss, the content of an employee's personal text don't. Bill Tucker, CNN, New York. ></s>WHITFIELD: All right, let's bring back our legal guys. This time we think we have both of them. Avery Friedman is a civil rights attorney and law professor. You didn't see or hear him earlier, but now you all will be able to hear him. He's joining us from Cleveland, worked out half of our technical problems. And Richard Herman is a New York criminal defense attorney and law professor even though you're seeing Las Vegas behind him because that's where he is today. All right, guys, well, this seems really interesting, because I wonder if we should even read anything into the fact the U.S. supreme court is going to take on this case when everyone thought it was a no- brainer. Avery, I'm going to you because you're a constitution professor as well. Everyone kind of thought this is a no-brainer if you're using company property then you really don't have that much privacy. Why is the U.S. Supreme Court taking on this case?</s>AVERY FRIEDMAN, CIVIL RIGHTS ATTORNEY: I actually ascribe a great deal of significance, Fredricka, to the fact that they took the case, because the issue here is, never been addressed by the Supreme Court. I mean, the world uses social networks. The question is, are those private texts? And the argument by the employer is, you heard, well, look, we gave them the equipment. Therefore, we have a right to go into the substance, but the bottom line is, does the fourth amendment, which prohibits unreasonable searches and seizures, does that give a right of privacy. Now, in the case that's gone up to the Supreme Court, Sergeant Kuan, who is the plaintiff in this case so he's one of the plaintiffs, said you know what? The sergeant, my superior was very laxed, because he was laxed I, therefore had that right of privacy, and that's a real quirk in this case. If it was a no privacy policy be different, but that's what's unusual here.</s>WHITFIELD: Well, you know, what's interesting, too, Richard. I mean, we talk about unusual search and seizure. Your fourth amendment right, however, in the case of this man, you know, the police chief and the police department said, but wait a minute. There was an overage use of his technology so that's why we had to investigate it and then along the way we saw that there were inappropriate messages that were being relayed back and forth and that's how this discovery was made. You buy that?</s>RICHARD HERMAN, LAW PROFESSOR: Isn't that beautiful? Here the police chief said, look, we want to monitor the amount of texting that's going on, because maybe we should get a different kind of texting plan. And as a result of monitoring this particular sergeant's plan we took a look at some of his texts and we found out, low and behold, they're sexually explicit. But I don't know, Fred, this is a case specific one. I don't think -- they'll have to bring more cases to the Supreme Court on this. I don't think in this case it's going to be upheld. I think this is government-issued equipment. Trust me, Fred, if something was going on illegal with this equipment, they would sue that police department as well.</s>WHITFIELD: So you don't see this is potentially a precedent setting case?</s>HERMAN: It's precedent setting in that the Supreme Court is taking it, and Avery is right on that. That is very significant, but I think this is a fact specific case. The broader one that everyone's worried about is if that employer gives you that Blackberry whatever and you write to all your friends, can they go and take a look at it? That's not this case.</s>WHITFIELD: Interesting. Our favorite former governor, I say that affectionately because I mean, you guys always love to talk about Rob Lagojevich. This time the former governor says you know what or his attorneys say, they want to subpoena the president of the united states, Richard, how realistic is this?</s>HERMAN: I don't think --</s>WHITFIELD: And why?</s>HERMAN: A sitting president to be subpoenaed? I don't think it's going happen, Fred. They're trying to pull out every stop they can here and they think President Obama as the former senator who's embroiled in this Senate seat that supposedly block Blagojevich sold, he might have pertinent information on it. At the end of the day, he's going to say I have no pertinent information, I don't know anything about it, and he's not going to do it. But the attorney representing Blagojevich is tweaking President Obama by saying, you know, he's a constitutional expert and he appreciates the fact that defendants have a right to call witnesses to protect them. So he's kind of tweaking him.</s>WHITFIELD: So Avery, you're giggling on this or --</s>FRIEDMAN: Yes.</s>WHITFIELD: Sighing and laughing. Where do you think this is going?</s>FRIEDMAN: Absolutely nowhere. Look, maybe this is a ploy for the ex- governor to get his reality show that he's been gunning for. This is actually a frivolous, it's a silly argument. It is a great big bowl of nothing. It's going nowhere.</s>HERMAN: But Fred, the most devastating news that come out of it on the Blagojevich case, is that he's going to be reindicted, further indicted January or February on the honest services violations before the United States Supreme Court rules on it. That is absolutely going to do him in.</s>WHITFIELD: Oh my goodness. Okay. Let's talk about another case that caught the attention of so many from start to finish. Well, it's still going on, but we're talking about the son of the late New York Socialite, Brooke Aster and he is now facing sentencing on Monday. Anthony Marshall is here, looking at right here. He's 85 years old, and he faces upwards of one to maybe even 25 years in prison for being convicted of stealing from his mom right there, Brooke Aster. So Richard, this is your backyard. There are already appeals from celebrities who say, you know he should not serve any jail time. Might these appeals coming from Whoopi Goldberg, weatherman Al Roker, in the form of a written letter going to the judge, might it make any kind of potential impact?</s>HERMAN: Yes, I think it will make --.</s>WHITFIELD: Really?</s>HERMAN: I think will, Fred, only because this man is 85 years old. They've put no character witnesses on during the course of the trial. Here perhaps for the first time the judge has seen a different side in this individual aside from the person who gave himself a $1 million salary a year to control and monitor his late mother's estate, but the judge has only seen one side of the story. Look, let's face it. He's 85 years old. A doctor's letter went in saying look if he goes in for any kind of time, he's probably going to die in prison.</s>WHITFIELD: All right, Avery, are the cardiologists also sending that letter. How do you see this unfolding on Monday.</s>FRIEDMAN: Well, that's the only important letter that came in. The only thing Whoopi said in her letter is that I moved here in the neighborhood, everybody was mean to me except Anthony. Big deal. It will impact -- you're looking for prison time. Not a lot. The letters will have very, very little impact, Fredricka.</s>WHITFIELD: OK, and I think we've got less than 30 seconds for you guys to comment on Tiger Woods. British bookers are, you know, placing bets trying to figure out how much payment if there were to be a divorce. Not your ordinary potential divorce, if there were to be one, and whether pre-nup means $100 million, $500 million? I can't believe bookers are actually making dealings on this. Avery --</s>FRIEDMAN: Well, you marine bookies. You got the bookers. Those are the bookies. You know you're right. You're exactly right. But these guys set up these kind of systems on any kind of odds. Look, the sad story here is the tragic destruction of a family. Whether it's going to be $100 million, $500 million, to be honest with you, who cares.</s>WHITFIELD: Yes, Richard, I should have gone to you first. You're the one in Vegas. What do I know about bookers and bookies.</s>HERMAN: I thought that (inaudible) was so civilized, Fred, taking odds on much she's recover in divorce? It's so uncivilized, but it's 25-1 that she's going to get over $500 million. She is not that prenuptial agreement is rock solid, Fred. Rock solid.</s>WHITFIELD: Yes, so much for the stiff upper lip to our British friends. All right, Richard, Avery, thanks so much. Glad you guys could be with us, no matter how we had to make it happen, from Vegas, from Cleveland, seeing you eye to eye or just hearing you all of it were happy.</s>FRIEDMAN: Merry Christmas.</s>WHITFIELD: You all have a great holiday season.</s>HERMAN: Happy holidays.</s>WHITFIELD: Thanks, guys.> All right, bowls for the hungry. A symbol of those in need this Christmas. Our photojournalist series, "Giving in Focus" takes a look (inaudible) in the nation's capital using their skills to give back.