Privacy and Communication for Law Enforcement

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As we have seen previously, law enforcement officer enjoy virtually no privacy with regard to communications made using equipment which belongs to the department.  In fact, some things are recorded and kept for years just in case someone may need to retrieve them later.  These things, like recorded dispatch channels or MDT to MDT chats, are also public records.  However, this data would most likely be accessed by the officer’s own agency.  The data could be accessed for some type of data analysis or for some type of internal investigation.

Today, the New Orleans Police Department updated its regulations on cell phones.  Policy 702, effective today, lays out NOPD policy with regard to agency owned phones and personal phones/tablets.  It clearly states in 702.2 that there is absolutely no expectation of privacy with regard to communication made using departmental equipment.  The bigger question is what are your privacy expectations with regard to a privately owned device.

Phones and tablets are so common-place today that everyone expects the next guy to at least have a cell phone.  Tablets have not quite gotten to that level, but they are more common than ever.  So, the department has decided you can carry it with you, subject to some restrictions.  The department can not unilaterally impose a no right to privacy edict on your personally owned phone.  Or can they?

First of all, the department can limit your use of a device for personal business.  Along with always having a phone with you comes the fact that people always have your phone number.  They may not have your working schedule.  So, what is allowable with regard to personal phone calls?

The regulation gives some guidance.  You can call your wife to let her know you will be late getting home from work.  You can answer a call from your wife in the event of a family emergency.  Can you call your wife to discuss your son’s failing grade in math?  Probably not.  I suggest thinking about it as if you were sitting on the desk.  What would be an acceptable amount of time to spend on the phone conducting personal business?  The answer is probably not much.

Can you conduct official business on a personal phone?  I think the answer is maybe.  You   can certainly use it for emergencies if you are unable to use the radio for some reason.  Platoon personnel have to be careful not to use the phone for what you would otherwise use the radio (dispositions, callbacks, etc.).  You can not use bluetooth ear pieces.  You can not text while you are driving.

Again, the big question is privacy.  I think the answer is that if the communication is of an official nature, it is likely that the department can and will order you to relinquish the information.  That includes phone records, text messages, or whatever.  You can probably redact your personal information.  However, if the official business is a disciplinary action because an officer was using the phone for personal business while standing on the parade route, then suddenly your personal business, which you may have otherwise enjoyed a privacy interest, may become official business and be subject to disclosure.

I know this all sounds grim.  Police officer enjoy less of a First Amendment right than your average citizen.  Police officers enjoy less of a privacy interest than your average citizen.  You would need a search warrant to obtain that kind of information from a private citizen during the course of an investigation.  This, however, is the current state of the law.

Finally, with the Sugar Bowl, Mardi Gras, and Super Bowl XLVII around the corner, it would probably be to everyone’s benefit to be familiar with all of the regulations found in Policy 702, particularly 702.5.  I see DI-1’s in the near future.

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