More Property Right Violations in California

By

Mitchell Gray

It’s no surprise that property rights would be subject to violation in California. Actually we should call it the Peoples Republic of California in reference to all of the communist nations who like to declare they are a “Peoples Republic.” California is, after all, the most socialistic State of the Union. A federal appeals court in San Francisco, the most liberal city in America, has made it more difficult for a business to ensure that their property is being used correctly.

The case involves a Sgt. Jeff Quon and three other officers of the Ontario, CA police department who sued their employer because requested transcripts of various text message conversations Quon and his associates had. Arch Wireless, the wireless provider, duly handed those transcripts over. Mr. Quon and friends apparently were misusing company property by sending these emails. The court ruled that the Ontario Police Department had no right to view those transcripts because they contracted with an outside company to provide wireless service. They further ruled they in order to view those records they would first have to seek the employees permission. They also ruled that employers can only access employee email if it is stored on an internal server. There are several issues I take with this ruling.

The court feels that because an outside company has provided the wireless service the employer has no right to see the transcript of any calls or text messages. Normally I would agree but there is a big problem we have here namely the employer (the Ontario police department) has contracted with Arch Wireless to provide this service to their employees. Because the employer has contracted with an outside company means they have a acquired a property right in how this service is used (because the employer pays for that service). The employer has also provided the tools to make these communications happen (pagers and cell phones) meaning the employer also has a property right in the equipment (since they paid for them). Because the employer pays for both the service and the equipment means that they have the absolute right, even if they have an outside company providing the service, to see how their property is being used. They may give the cell phones to the employees and say “this is your cell phone” but it is done on a conditional basis only. The employer isn’t giving any title of ownership of the phone to the employee but is merely granting them stewardship over the phone. If the employee loses it, breaks it or needs a new one they would more than likely need to inform the company to receive another. And if they should end their employment with that company then the employee would have to surrender the phone to the company since it was not the employees property to begin with.

Now, if Sgt. Quon was using his own personal cell phone or pager in order to send the messages to his associates personal cell phones or pagers then, no, the employer would have no right to see the transcripts of those conversations. If the employer sought those and obtained them then both employer and contracted company (Arch Wireless) would have violated the property rights of Sgt. Quon and his friends. If Sgt. Quon had used his personal cell phone or pager to send messages to his associates employer provided cell phones or pagers then his employer would still have the right to view what was sent. Why? Because Sgt. Quon’s associates have used their employer provided equipment to carry on the conversation thus they are using company property.

As long as someone is using company property the company has the right to know how that property is being used. Likewise if I work for a company and I am regularly sending out offensive emails from my company computer to friends and family the company has the right to know how I am using their property. Assuming that the company does not store any emails on an internal server but contracts with their internet service provider to do so they still have the right to know what emails were sent and received by the computer I’m using (because they bought it and pay for the internet service). If someone should send me an email to my company computer then the employer still has the right to see the transaction. They have a property right in that computer and in the internet service they provide and the right to know how their property is being used.

We must understand that privacy can only exist if we are dealing with your own personal property. If you are using another’s property that person or company has the right to know how their property is being used. You have no privacy rights in that since you only have a right to privacy on your own property. If I take my personal computer to Starbucks and use their internet service to send and receive pornography Starbucks has the right to know how their internet service is being used. They have a property right in it because they pay for it and allow me to use it. It becomes different if I pay Starbucks for access to their internet service. Once I transfer them the money they are transferring some form of ownership to me. Now, if the contract calls for them to maintain my privacy then sending dirty pictures ought to be protected by Starbucks and the privacy right I have acquired because of my rental of their service. If privacy is not expressly stated in our agreement then I should assume that since I am merely renting this service from Starbucks I do not have absolute privacy and any violation of their terms of use could result in either criminal prosecution or ban from their service.

People do not have a any “rights” per se. Since all rights come from your right to property your rights extend only to your property. I have the right to free speech but only in my newspaper, blog, television program, etc. I have no right to free speech on or in someone else’s property. To assume I do would violate the property owners right to determine how he or anyone else should use his property. I have a right to privacy on in my own property. You don’t have the right to peek in my window at night. You don’t have the right to see what is stored on my computer hard drive. But I have no right to use your property and expect that I have a right to privacy (thought I can have contractual privacy protection). By demanding a privacy right on your property I am violating your right to determine how your property is being used.