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Mark I. Schickman, Editor and Cathleen Yonahara, Assistant Editor
Freeland Cooper & Foreman LLP
Vol. 18, No. 7
July 14, 2008
EMPLOYEE PRIVACY
Not your network, not your right to monitor
Text messages are not treated like e-mails, says the Ninth U.S. Circuit Court of Appeal (the federal appeals court covering California), which recently decided that an employer must have either a warrant or the sender or recipient's permission to see
an employee's electronic text messages sent over a third-party network (i.e., not the employer's own network). And that's true even if the employer pays for and provides the service.
Who gets to see your text messages?
Arch Wireless contracted with the city of Ontario to provide wireless text messaging services. The city's police department used the service via alpha-numeric pagers it paid for and distributed to its officers. A sent text message traveled via radio
waves and Arch's network (e.g., satellites and computer servers) and then reached the recipient. Under the agreement with the city, Arch charged an overage fee if messages exceeded 25,000 characters in a single month.
The police department had a written "Computer Usage, Internet and E-mail" policy informing employees that (1) department-owned computer systems were for business use only and (2) the department reserved the right to monitor and log all network
activity, including Internet and e-mail use. The policy didn't specifically refer to text messaging, and the department's practice was not to audit the content of text messages so long as employees paid any applicable overage charges.
Several police officers exceeded Arch's 25,000-character limit and paid for the overage fees. However, the lieutenant in charge of the pager services decided he no longer wanted to be a "bill collector." The police chief ordered the lieutenant to
obtain from Arch the transcripts of the offenders' text messages to determine if pagers were being used exclusively for work-related purposes. Among the possible reasons for that policy was to make sure officers didn't have to pay for work- related
overages; it wasn't necessarily to identify violations of the business-use- only policy. Arch complied with the request.
The transcripts revealed that many of the messages were personal in nature and often sexually explicit. One of the offenders, Jeff Quon, filed suit, claiming:
- Arch violated the federal Stored Communications Act (SCA) in disclosing the content of his text messages to the police department; and
- the city, police department, and various upper-level police officers violated his and his text
message recipients' Fourth Amendment right against unreasonable searches (applicable to public employees) and seizures as well as similar privacy protections under the California Constitution (applicable to public and private employers).
Is it
a communications carrier or a computer service?
The Ninth Circuit found that Arch violated the SCA, which generally prohibits electronic messaging providers from disclosing the contents of any communication maintained on the service without a warrant or permission. The court analyzed the Act's
wording and legislative history to decide whether Arch was considered (1) an "electronic communication service," which can disclose messages only with the consent of the sender or recipient (in this case, the police officers) or (2) a "remote
computing service," thereby allowing it to also disclose messages to the "subscriber" (the city of Ontario). Because Arch didn't actually store the messages on its equipment for the city's benefit (beyond mere backup protection to ensure the
messages' delivery), the court determined it was an "electronic communication service" and therefore needed the sender's or recipient's consent before disclosing message contents to the city.
The court found that the officers had a reasonable expectation of privacy in the content of their text messages because despite the department's apparent broadly worded written policy, the department's practice was not to monitor text messages. Its
search was unreasonable in scope because there were less-intrusive methods to verify the efficacy of the character limit. (For example, the department could have warned officers in advance or could have allowed them to redact personal messages before
review.)
Public employees receive protection because the ruling extends the Fourth Amendment's shield against unreasonable governmental search and seizure to electronic messages sent over third-party networks. And since California's constitutional right of
privacy is coextensive with the Fourth Amendment, the same reasoning applies to private employers. Quon, et al. v. Arch Wireless Operating Co., Inc., et al. (9th Circuit Court of Appeals, 6/18/08).
Bottom Line
Here's what the Ninth Circuit's decision teaches us:
- You may continue to monitor employee e-mails sent via your e-mail network with the proper notices to employees.
- You may contract with an outside vendor to store and process employee e-mails without affecting the right to monitor them.
However, if you use an outside provider for text messaging services ― which virtually all employers do ― you can't review the contents of employees' messages without the sender's or recipient's permission.
- To the extent you provide a
personal digital assistant that allows both e- mail and texting, you may need permission for monitoring text messages but not e- mail.
The Ninth Circuit's decision suggests alternatives for those of you who want to monitor text messages. You
should consider revising Internet and electronic communications policies to specifically address access to text messages to minimize any expectation of privacy. Likewise, you should either include in the contract with any third-party vendor the term
that text messages are stored for your benefit or consider using an employer-owned storage device. These steps will minimize the risk of invasion-of-privacy claims by employees who object to such monitoring.
Instant communication and heavy reliance on electronic devices in the workplace are here to stay. Because technology continues to evolve at a faster pace than the laws governing their use, you should stay tuned for continued changes to your legal
rights and obligations.
The authors can be reached at Sedgwick, Detert, Moran & Arnold LLP in Los Angeles, aaron.colby@sdma.com, or in San Francisco, james.brown@sdma.com.
You can find sample language for creating an electronic monitoring policy in the subscribers' area of www.HRhero.com, the website for California Employment Law Letter. Log in, scroll down to HR Tools,
and click on "Sample Handbooks & Policies." If you need help, call customer service at (800) 274-6774.
Copyright 2008 M. Lee Smith Publishers LLC
The contents of CALIFORNIA EMPLOYMENT LAW LETTER are intended for general information and should not be construed as legal advice or opinion. Readers in need of legal advice should retain the services of competent counsel. The State Bar of California
does not designate attorneys as board certified in labor law.
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