WORKPLACE LAW -
Employer Review of Employee Text Messages
Question:
As an employer who provides cellular phones and two-way pagers to some of our employees, I am wondering if we have the right to review the content of the text messages being sent through these devices? Can you clarify the current rules for me?
Answer:
An employer’s right to review the content of text messages sent through employer provided devices greatly depends on the policies that the employer has in place. In June of 2008, the United States Court of Appeals for the Ninth Circuit decided the case of Quon v. Arch Wireless, which gave employers guidance as to their rights regarding review of employee text messages. In Quon, the Ontario Police Department issued two-way alphanumeric pagers to some of its employees, including Sergeant Quon. Subsequently, the Department requested a record from Arch Wireless, the company that provided the text messaging service, and thereafter reviewed the sent and received text messages of Quon. Quon brought suit against the Department and Arch Wireless, claiming that Arch Wireless violated the Stored Communication Act and that the Department violated the Fourth Amendment of the United States Constitution and Article I, Section 1 of the California Constitution.
The Court first held that Arch Wireless violated the Stored Communication Act when it released the transcripts of the text messages to the Department, reasoning that Arch Wireless was an electronic communication service (ECS), not a remote computing service (RCS). This conclusion was reached because of the nature of the service Arch Wireless provided. And while an ECS can only release private information to an addressee or intended recipient of a text message, an RCS can also release private information to the subscriber of the service. In Quon, the Department was the subscriber, and because Arch Wireless was an ECS, the private information was improperly released. The court relied on the statutory definitions contained in the Stored Communication Act and its legislative history in reaching its decision.
Next, the court in Quon assessed whether the Department violated the privacy rights of Quon provided by the United States Constitution and the California Constitution. The court explained that Quon had a reasonable expectation of privacy in the content of the text messages he sent and received. In making its decision, the court examined the various policies the Department had regarding the communications at issue. First, the court noted that the Department did not have an official policy regarding text messaging. However, there was a general computer usage, internet, and email policy that gave the Department the right to monitor and log all network activity. Employees were informed that this general policy was extended to text messages sent through the two-way pagers during a Department meeting.
Notably, there was also an informal policy in place. This informal policy arose after Quon and other employees had gone over the monthly character limit on numerous occasions. When the limit was surpassed, a Lieutenant repeatedly gave Quon and the other employees the option to pay for the overage and avoid an audit. This informal policy resulted in the court finding that Quon had a reasonable expectation of privacy as to the content of the text messages he sent and received. Therefore, when the Chief audited Quon’s communications after receiving a record of them from Arch Wireless, Quon’s reasonable expectation of privacy was violated.
The court’s decision in Quon highlights the importance of having the proper policy in place regarding the use of cellular phones and two-way pagers for text messaging purposes. Although the employer in Quon had a general electronic resources policy that was amended to include the two-way pagers, the court held that it was modified by the informal policy in a manner that led to a reasonable expectation of privacy. Therefore, employers should have an unambiguous policy in place that explains that employee communications made through devices provided by the employer are not private. A properly drafted policy should definitely include a provision requiring that any amendments to the policy must be made in writing.
A properly drafted policy can enable employers to legally review text messages sent and received by their employees through company provided devices. However, if the policy is improperly drafted, employers may be exposed to liability based on privacy claims under the United States Constitution and the California Constitution.
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