January, 2011, Warning Bells article

Here is a New Year’s resolution for you: “I will think defensively whenever I send an electronic message.” This means personal cell phones, computers and all those devices in-between. Like a tape recorder or a camera, the Internet never forgets the messages it transmits.

When it comes to cell phones, just speaking on one at the wrong time can end up with a visit from your friendly Internal Affairs representative. When you’re in a black and white, you’re in a fish bowl with all eyes on you. Just as you loved to catch your parents doing something that they had recently admonished you for doing, citizens love to catch an officer off base. This includes having a cell phone up to your ear as you’re driving the black and white down the street. “Aha!” they cry, “gotcha.” Then their cell phones are used (probably while driving) to text in your shop number to the tip line, and away you go down the 1.28 trail.

Enjoy blogging? Then consider what happened to a Missouri police officer. The officer was part of a SWAT raid that resulted in a dog being injured. There were protests and the local newspaper posted photos of the activists on its website. The officer knew that one of the protestors in the photograph holding a sign that decried cruelty to animals had a criminal record, and he commented on it in the blog below the photograph. “The guy with the ‘stop the brutality’ sign has multiple convictions for assaulting people with guns!!! I’d like him to stop the brutality of humans!” wrote the officer. The newspaper removed the comment, but it had been seen and the electronic web never forgets. The comment was retrieved and the officer took suspension days for revealing confidential law enforcement information.

Next, let’s look at Facebook. A New York officer lost a trial against a suspect he arrested for possessing a weapon when the defense attorney attacked the officer’s credibility in front of the jury by referencing a Facebook post he’d written about watching the movie “Training Day to learn proper police procedures.” The jury brought in a not-guilty verdict, and the officer was undoubtedly embarrassed when cross-examined about which police procedures from Training Day that he admired most: murder, thievery, narcotics use on duty, beatings, etc.

Before you get too amped up on your First Amendment rights of expression, consider Garcetti v. Ceballos, 547 U.S. 410 (2006). A district attorney wrote a memo criticizing his agency’s decision to prosecute. A full discussion of the legal issues surrounding the First Amendment is beyond the scope of this article, but it is instructive to look at some of the language in this U.S. Supreme Court case.

“Held: When public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline. (a) Two inquiries guide interpretation of the constitutional protections accorded public employee speech. The first requires determining whether the employee spoke as a citizen on a matter of public concern. If the answer is no, the employee has no First Amendment cause of action based on the employer’s reaction to the speech. If the answer is yes, the possibility of a First Amendment claim arises. The question becomes whether the government employer had an adequate justification for treating the employee differently from any other member of the general public. This consideration reflects the importance of the relationship between the speaker’s expressions and employment. Without a significant degree of control over its employees’ words and actions, a government employer would have little chance to provide public services efficiently. Thus, a government entity has broader discretion to restrict speech when it acts in its employer role, but the restrictions it imposes must be directed at speech that has some potential to affect its operations.”

Be aware that the protections of the First Amendment may not be as powerful as you might believe. Personnel complaint investigations are becoming routine when it comes to messages and photos being sent among officers using their cell phones. Racial bias, sexual harassment and just plain good old “conduct unbecoming” allegations can result from these messages, even if they were sent with the best of intentions. However, explaining your intentions to Internal Affairs might be uncomfortable months later. (They don’t have much of a sense of humor, you know.) Always remember that private messages have a funny way of not staying private. They’re forwarded to others, posted and sometimes even retrieved from your phone carrier by subpoena.

 Police One discusses a case of a criminal defense attorney who was able to subpoena the cell phone records of his client’s arresting officer. The lawyer argued that the cell phone was carried on duty and was occasionally used to contact other officers and supervisors. The judge likened it to a notebook, and upheld the subpoena giving the defense attorney access to the officer’s phone traffic and text messages. Do you use your personal cell phone on duty? If you do, consider the fact that a suspect may one day be reading the message you are about to send.

Currently, one-third of the agencies polled nationwide state that they require Facebook, Twitter and MySpace passwords from prospective officers as part of their background checks. They then audit these accounts for statements that might reveal bias or other potential problems. Will the Police Commission be demanding the same before they allow you to go into a coveted position in the near future? It’s one small step beyond the issue of financial disclosure, and the Commission’s demand for a biased policing conviction is getting desperate!

In the private sector, there are firms that specialize in analyzing “social intelligence.” The data sphere is mined by these companies, which gather information for their clients regarding prospective employees or employees who are being considered for a promotion. This same service can be used against you by defense attorneys and plaintiffs’ attorneys, and in many instances it has already happened. These firms not only look at your Facebook profile, they also examine your “friends’” Facebook profiles for information or pictures of you that you may not even know have been posted. The same goes for Twitter, online forums, blogs, newspaper postings, forwarded e-mails and any other electronic information on the ’Net or in public records. From this information, they “predict” what your long-term behavior is likely to be. Employers act on these predictions in order to avoid expensive hiring mistakes.

Is it accurate? Who knows, but it is used, and therefore it has a practical effect on whether people get a job or promotion. So, the next time your thumb hangs over that send button, hear warning bells. Imagine you are sending a copy of your electronic message to a suspect, to Internal Affairs or to the Los Angeles Times, each of whom might one day be able to access it. Do you really want to hit send? Think it over.

Be legally careful out there

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