Bowers suffers setback

Judge cites ‘qualified immunity’ in dismissing federal civil lawsuit

NEWS EDITOR

A federal judge has ruled in favor of Taylor County, a former sheriff and the county’s information technology director in a civil lawsuit brought by deputy Steve Bowers.

Judge James Peterson, of Wisconsin Western District federal court, issued a ruling that while Bowers’ fourth amendment rights were violated, the qualified immunity rule shields them from facing penalties for their actions.

“The court concludes that defendants violated Bowers’ Fourth Amendment rights by failing to get a warrant before searching his Dropbox account. But the law didn’t clearly establish that defendants needed a warrant under the circumstances of the case, and defendants’ search of the account was otherwise reasonable. So defendants are entitled to qualified immunity, and the court will grant their motion for summary judgment,” Peterson wrote. Bowers has been on paid administrative leave since February 2017 following an investigation by then-sheriff Bruce Daniels over the unauthorized release of murder investigation case files to a producer of the true-crime television program “Cold Justice.”

At the time, the county was working with the show’s producers on a different case. According to court documents, Bowers admitted to Daniels that he shared files without prior permission. After being told this, Daniels directed IT director Melissa Lind (formerly Seaver) to try and access Bowers’ Dropbox account. The private account had been linked to Bowers’ county-issued email when it was set up. Lind changed the account password and accessed the account, finding the case files.

Bowers currently faces two felony misconduct in offi ce charges filed by the Wisconsin Attorney General’s office in connection with the unauthorized release of information.

In filing the federal lawsuit Bowers said that Daniels and Lind violated his Fourth Amendment rights because they did not obtain a warrant before accessing his account. He claimed damages for “mental suffering, anguish, fear, humiliation, loss of personal freedom, and expenses.”

In asking for summary judgement, the county and other defendants said they believed their search was lawful and even if it wasn’t they would be entitled to qualified immunity.

According to the Legal Information Institute at Cornell Law School, “qualified immunity protects a government official from lawsuits alleging that the offi cial violated a plaintiff’s rights, only allowing suits where officials violated a ‘clearly established’ statutory or constitutional right. When determining whether or not a right was ‘clearly established,’ courts consider whether a hypothetical reasonable official would have known that the defendant’s conduct violated the plaintiff’s rights.” In addition, rulings on qualified immunity claims are made as early in a case as possible.

Judge Peterson cites the difference between a search of private property and a workplace search as far as expectations of privacy on each. “In the court’s view, defendants’ search was distinct from a typical workplace search, and the Dropbox account was sufficiently private to fall within the general warrant requirement. But the court reaches that conclusion only by extending principles from current precedent and following the reasoning of courts from other circuits. Bowers hasn’t cited analogous cases from the Supreme Court or the Court of Appeals for the Seventh Circuit, and the more general case law he cites doesn’t apply with obvious clarity to his situation. Under these circumstances, defendants did not violate any clearly established rights, and thus they are entitled to qualifi ed immunity,” Peterson wrote. According to Peterson, ‘The question for Bowers’s claim isn’t whether he had a general expectation of privacy in his Dropbox account, but whether he had a reasonable expectation of privacy specifically from intrusions by his employer.”

“A difficulty for Bowers is that his claim arises out of the intersection of two areas of law that are largely unsettled: a government employee’s expectation of privacy from his employer and an individual’s expectation of privacy in electronic data,” Peterson stated. Noting the Supreme Court has decided only a few cases on either issue.

In his analysis of the legal arguments presented by both Bowers and the defendants, Judge Peterson focused on the county’s information technology policy and particularly on the statement giving the county the right to “monitor all information technology usage.”

The judge stated: “Defendants emphasize the word “all,” contending that it extends beyond the county’s own equipment. But that’s not a reasonable interpretation, as it suggests that the county could monitor its employees on any personal electronic device anytime, anywhere, and for any purpose. The more reasonable interpretation is that the policy applies to technology use that is either done while on the job or on a county device.” The judge notes that the policy doesn’t say that the county may access private accounts stored outside the county’s computer system.

The judge also highlights other details such as Bowers’ paying for the Dropbox account, that it was stored on the cloud rather than a local server and being password protected as examples of Bowers having an expectation of privacy.

“As a matter of common sense, these facts favor the conclusion that Bowers had a reasonable expectation of privacy. But there is surprisingly little case law in this circuit regarding an individual’s reasonable expectation of privacy in an online account,” Peterson wrote.

“[I]f the question were simply whether it was clearly established that an employee has a reasonable expectation of privacy in a password-protected, private, online account, the answer would likely be yes,” Peterson stated.

Peterson responded to the defendants argument that the expectation of privacy was diminished because Bowers had shared the Dropbox contents with others.

“By way of comparison, homeowners don’t forfeit a reasonable expectation of privacy against intrusions by the police if they invite friends to stay with them,” Peterson stated.

Ultimately though, any expectation of privacy on behalf of Bowers, or violation of that by the defendants didn’t matter because of the qualified immunity rule. “The problem for Bowers is that neither a district court case nor a Supreme Court case about a significantly different issue would have made it clear to defendants that their conduct was unlawful under the circumstances of this case,” Peterson stated.