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Hurst case: Public employer is not an eavesdropper
Legal Insights for Fire Protection Districts (Fall 2011)

by Donald R. Tyer

In Hurst v. The Board of the Fire and Police Commission, 2011 IL App, (4th) 100,964, the Illinois Appellate Court for the Fourth District upheld a decision by the Board of the Fire and Police Commission of Clinton, Illinois (the “Board”) to discharge a police officer for accessing pornographic websites on a mobile data terminal while on duty. Hurst was terminated from his job as a police officer after his department used Web Watcher software to intercept pornographic imagery on the terminal that Hurst used. Following the Board’s decision to terminate him, Hurst filed an amended complaint for administrative review arguing that the Police Department violated the Illinois eavesdropping statute by utilizing Web Watcher software to collect evidence used to terminate him.
The Board and the Chief of Police filed a Motion to Dismiss which was granted by the circuit court. On appeal, the appellate court agreed with the Board and Chief, holding that the eavesdropping statute protects electronic communication that both parties intend to be private. The court found no evidence that the parties transmitting pornographic images to the data terminal had any desire to keep those images private; the websites that sent Hurst pornography were not sending images to him exclusively. The Illinois Eavesdropping Statute provides protections for electronic communications that are defined as the “[t]ransfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or part by a wire, radio, pager, computer, electromagnetic, photo electronic or photo optical system, where the sending and receiving parties intend the electronic communication to be private and the interception, re-cording, or transcription of the electronic communication is accomplished by a device in a surreptitious manner.” (720 ILCS 5/14-1(E)) Accordingly, the transmissions that Hurst accessed on his terminal were not protected under the eavesdropping statute.
The court further held that Hurst had no reasonable expectation of privacy in the transmissions because the Police Department Policy and Procedures Manual specifically stated that the mobile data terminals were for law enforcement purposes only and should not be used in any way that might discredit the department. Finally, the policy manual noted that messages sent on these systems were “retrievable,” thus putting Hurst on notice that he should have no expectation that communications on this network were private. Thus, the appellate court found there was no violation of the eavesdropping statute and upheld the officer’s dismissal.
This decision highlights the necessity for police and fire departments to have updated electronic acceptable use policies particularly in light of the ever-expanding capabilities of devices to access information on a variety of networks. The ability to download or exchange objectionable information is no longer limited to desktops or laptops, but also smart phones. Caution is recommended. ■

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