D.D.C.: BOP employee had no REP in BOP owned work cell phone even though personal information was on it

BOP IG issued an administrative subpoena for respondent to produce her BOP owned cell phone, and she refused claiming a reasonable expectation of privacy in it. First, the standard of review is narrow and limited, and the subpoena is enforceable. The subpoena is not too indefinite, and it is narrowly tailored to gather relevant information. Second, as to a reasonable expectation of privacy, assuming she has one, it isn’t reasonable. She was knew the phone was BOP owned and that she had no REP in it. United States v. Hill, 2018 U.S. Dist. LEXIS 102637 (D. D.C. June 20, 2018):

Even assuming arguendo that a reasonable expectation of privacy determination is warranted in this case, Respondent has failed to establish such a reasonable expectation. As an initial matter, the cases upon which Respondent relies do not support her assertion that she—a BOP employee—has a reasonable expectation of privacy in the personal information stored on the BOP-issued devices. Indeed, Riley v. California, 134 S. Ct. 2473, 189 L. Ed. 2d 430 (2014), and United States v. Jones, 565 U.S. 400, 132 S. Ct. 945, 181 L. Ed. 2d 911 (2012), both involved the defendants’ privacy interests in personallyowned devices, and therefore provide no guidance for this court’s determination as to whether Respondent has a reasonable expectation of privacy with respect to the three government-owned devices at issue. Riley, 134 S. Ct. at 2481 (personal cell phone searched incident to arrest); Jones, 565 U.S. at 402 (GPS device attached to a personal vehicle in a criminal investigation).

Additionally, in Quon, although the Supreme Court declined to rule broadly on the privacy expectations a government employee may have in government-issued electronic devices, the Court noted that when a government employee is told that an electronic device is “subject to auditing,” he should be on notice that a search may take place. 560 U.S. at 763 (“Even if he could assume some level of privacy would inhere in his messages, it would not have been reasonable for Quon to conclude that his messages were in all circumstances immune from scrutiny. Quon was told that his messages were subject to auditing. As a law enforcement officer, he would or should have known that his actions were likely to come under legal scrutiny, and that this might entail an analysis of his on-the-job communications.”). Thus, not only do Riley, Jones, and Quon not support Respondent’s contention that she “has a reasonable expectation of privacy in her personal information housed on the [BOP-owned] devices,” Respondent Mot. at 7, but Quon suggests that the opposite may be true.

Moreover, as in Quon, Respondent was informed that she had no reasonable expectation of privacy in the information stored on the phones and tablet. Specifically, the BOP Office of Information Technology’s Samsung S7 policy handbook—which Respondent received along with her Samsung phone—states: “[i]f personal information is stored on the device, it may be subject to search and production due to e-Discovery/litigation, FOIA requests, or an administrative staff investigation.” ECF No. 5-2 (BOP Samsung Galaxy S7 Policy) at 42 (emphasis added). And when Respondent initially activated her BOP-issued Samsung phone, she was required to confirm her receipt and understanding that the Samsung phone is “a Government furnished device and [that] all activities may be monitored.” Id. at 15; ECF No. 11-1 (Supplemental Declaration of Greg Thompson, “Thompson Suppl. Decl.”) ¶ 2.

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