Page 22 - GIADA-Sept-2018-Final

DEALER STATS

Dealer Principal as Big Brother

The law permits electronic surveillance of employee emails and phone

calls, but only within a limited framework of federal, state, and local rules,

and not without serious ethical concerns.

By James S. Ganther Esq., CO-founder and CEO of Mosaic Compliance Services

George Orwell immortalized the notion of
an all-seeing and intrusive government as
“Big Brother” in his classic novel “1984.”
The recent Supreme Court decision in
Carpenter v. United States reminds us that
Big Brother does, in fact, exist. And some of
the same issues that arose in Carpenter can
arise at your dealership.
For those of you who don’t read Supreme
Court decisions as part of your normal
workday, here’s the Carpenter case in a
nutshell: Every time your phone connects
to a cell tower, it generates a time-stamped
record called cell site location information.
Timothy Carpenter was convicted for four
robberies, in part because his CSLI placed
him near the scene of those four robberies
at the time they were committed.

In short, Big Brother was watching. States of Consent: Dealers operating in all-party consent states must inform every party on a
Carpenter was able to get his conviction phone call if it is being recorded.
overturned, arguing that his CSLI could not may be monitored or recorded” disclaimer consent and all-party consent. In states with
be obtained without a warrant based upon when we dial a customer service number. If the former, only one party to the recording
probable cause. Five justices agreed and you intend to monitor or record incoming (presumably the caller) needs to consent
today he is a free man (who, presumably, phone calls, you should adopt this practice. to the recording. Consult the map below.
will never again take his cellphone to If you are in an “all-party” state, everyone
“work”). In addition, employees need to be made on the call must know of the recording
aware. In writing is best; it may be included and consent to it. Since employees do not
We live in a connected, archived digital in your dealership’s employee handbook, always make the required disclosure, most
world. What rights do dealers have to and a process put in place to document that employers in all-party consent states only
listen to, record, and review employee and the employee received it and agrees to be monitor incoming calls to avoid litigation.
customer communications in such a world? bound by its terms.
What can a dealer do as Big Brother? 3. REASONABLE EXPECTATIONS OF PRIVACY
2. OUTBOUND CALLS AND THE ECPA
The short answer is “a lot.” But there are Outgoing calls are more difficult to monitor Employees have no reasonable expectation
legal rules and limits to such behavior, as or record than inbound calls for the obvious of privacy even when employers have
well as ethical and business considerations. reason that the employee making the call promised it. In Smyth v. Pillsbury (1996),
must provide the disclosure. Ensuring the court held that an employer could read
1. INCOMING CALLS TO THE DEALERSHIP that is difficult, and the downside is huge: personal emails even when it had told
Incoming calls to a dealership may be allegations of illegal wiretapping. employees it would not.
monitored and recorded, provided the
dealership notifies callers of this fact. We When it comes to consent to recordings, In Quon v. City of Ontario (2010), the
are all familiar with the standard “This call there are two main positions: one-party Supreme Court held that a police officer

20 | GIADA Independent Auto Dealer SEPTEMBER 2018