Text Message Privacy: Employee Text Messages Shielded from Employer Review
If an employer issues a cellular phone, iPhone, Blackberry or pager to an employee, does the employer have the right to search text messages sent to or from the device? According to a recent decision by a federal appeals court, the answer appears to be a qualified “yes” but only if the employer consistently follows a formal company policy that clearly authorizes such search. The case is of particular interest in that it highlights the pitfalls for employers that monitor such communications, but also suggests ways that employers can protect themselves from liability in such situations.
In an effort to facilitate rapid communication, the City of Ontario Police Department in California issued two-way pagers to its SWAT team members and paid for the text message service provided by Arch Wireless Operating Company. Arch billed the City a fixed monthly charge for the 25,000 characters per person and an overage charge for each character exceeding the limit. The City’s written policy prohibited personal use of City-owned computers, e-mail, Internet and other systems, and allowed the City to search the content of messages. The policy warned that employees “should have no expectation of privacy or confidentiality”; that all communications using the network were the City’s property; that the devices should not be used for personal reasons. The City also banned communications containing “inappropriate, derogatory, obscene, suggestive, defamatory, or harassing language.” It also had a policy that required employees to pay for “overage” charges in excess of the 25,000 characters per pager. Although several officers including Quon, frequently exceeded the limit, they avoided scrutiny of their text messages for personal use by paying overage charges.
In 2003 the Police Department opened an internal investigation into pager usage and overage charges. As par of the investigation it was learned from the records of Arch, the service provider, that Officer Quon exceeded the 25,000 character limit by 15,158 characters and that he had been transmitting sexually explicit messages to his ex-wife, his mistress and to others within the department. Quon, along with several others with whom he “texted”, sued in federal court for invasion of privacy.
In Quon v. Arch Wireless Operating Company (June, 2008) a federal appellate court held that companies that contract an outside provider to transmit text messages can’t read them unless the worker agrees to a search. Users of text messaging services “have a reasonable expectation of privacy” regarding messages stored on the service provider’s network. The court then held that the City’s review of all of Sgt. Quon’s text messages was an unreasonable search.
The text message part of the ruling will affect employers but the decision is narrower than the initial press coverage suggests. To begin with, it imposes no restrictions on an employer’s enforcement of an electronic communications policy similar to the Computer Usage, Internet, and E-mail Policy promulgated by the City. The majority of companies pay outside parties to transmit their workers’ text messages but most keep their workers’ email on internal servers. While the outsourced wireless providers’ servers are subject to the federal Stored Communications Act, the electronic communications stored on the corporate network are not. Thus, employers retain the right to monitor e-mail sent over the corporate network via a company-issued personal digital assistant, such as a Blackberry.
The court suggested that there were many less intrusive means to accomplish the City’s goal of determining whether the pagers were being used appropriately, such as asking the employees for their consent to read the communications or warning them in advance that their text messages would be monitored and reviewed for content during certain months. Or, the City could have asked Quon to collect his past messages, redact those of a personal nature, and then submit the redacted transcript for examination with a count of the characters used.
This case is a warning to employers about the dangers of allowing informal customs to trump established policies and the consequences of lax enforcement of existing policies. To ensure enforceability, the electronic resources usage policy should be crafted broadly enough to include all technology being used by company employees that can be modified only in writing signed by a senior executive. It should mandate managers and information technology personnel to avoid making statements or engaging in conduct that relaxes or countermands the policy. Companies should avoid the creation or evolution of “informal” processes that ignore or overlook the enforcement of rules regulating the use of company-issued technology equipment. Whenever any technology device is issued to an seasoned employee or a new hire, the company should provide a copy of its policy and obtain an acknowledgement of receipt. An electronic resource usage provision could be included in a contract employee’s employment agreement or the employer’s existing policy could be incorporated by reference.
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