Can Your Boss Read Your Text Messages?

So, your company has issued you a cell phone for work. And inevitably, you end up using the phone for more than just scheduling meetings or calling customers. And then it hits you: Are your personal messages on your company's phone just that? Or can your boss review everything you write?

The short answer is that currently an employer has no right to read an employee’s text messages without their knowledge and consent. And service providers are also barred from turning over the contents of the messages to the employer who pays for the service.

But this could all change soon. This spring, the US Supreme Court will review Ontario v. Quon, to determine whether government employees have a reasonable expectation of privacy when e-mailing or texting using company-owned systems. This will be the first time the Court has addressed such an issue.

Quon could set precedent regarding and individual’s right  to privacy in their text messages and could reach beyond government into private sector employees and employers’ formal and informal policies regarding electronic communications. In addition, the case could address the right to privacy to all electronic communication, including email and other electronically stored information (ESI).

Background

The issue is whether the Ontario (CA) Police Department violated an officer’s constitutional right to privacy when it reviewed personal text messages sent and received on a government-issued pager. When the department issued pagers to officers, it had a formal policy covering computer, Internet, and e-mail usage stating the systems were for official use only. The policy allowed for “light personal communications” but warned employees should have no expectation of privacy. There was no specific policy for text messaging, however.

Sgt. Jeff Quon regularly exceeded the 25,000 text character limit specified by the department. After reviewing pager usage, the department discovered only 57 of more than 450 messages sent and received by Quon involved police business. Many of the others were personal, including sexually explicit private messages (“sexting”). The department ordered transcripts of the messages from Arch Wireless, the city’s text messaging provider.

Quon and three others sued the city of Ontario in 2004, claiming their Fourth Amendment rights against unreasonable searches and seizures had been violated. They believed the informal policy created a reasonable expectation of privacy for their personal messages.

The police department argued there should have been no such expectation and that the lieutenant’s billing practice was not an official policy. The Ninth Circuit Court of Appeals in San Francisco found in favor of Quon, ruling the city could have told him about the text message review and given him a chance to redact his personal messages. The court said the chief’s decision to read the messages without a suspicion of wrongdoing by Quon violated his Fourth Amendment protections against unreasonable searches. In addition, the court ruled Arch Wireless violated the Stored Communications Act when it produced transcripts of Quon’s messages.

Potential Impact

The impacts of the case are great, given the avenues of communication today.

The opinion could influence the language of all employer technology-usage policies. Employers may need to alter their policies to include all forms of technology such as text messaging and other forms of electronic communications or risk waiving their rights to audit such data.

Employers may also need to monitor the informal policies of lower management, even with a formal corporate technology-usage policy, as the case may establish that such informal policies can trump written policies.

A court ruling that there is a broad right to privacy in text messages on a company issued device will hold e-discovery implications. Private employers will have a difficult time trying to comply with discovery obligations while not treading on their employees’ privacy. While complying with discovery requests, employers act proactively to preserve their employee’s data; search for specific data; review the data; and then produce the data in litigation. Given the limited privacy rights for employees, these can be done with or without the employee’s knowledge or consent.

If the Court rules that employees have a stricter privacy right, then an employer’s obligation of fulfilling discovery requests becomes that much more difficult. The concept of “best practices” for preserving, collecting, reviewing, and producing data in response to litigation may have to be re-written.

See the case here.