How much privacy do workers have when they send text messages from company accounts?
Users of text-messaging services “have a reasonable expectation of privacy” regarding messages stored on the service provider’s network, 9th Circuit Judge Kim Wardlaw said in Quon v. Arch Wireless Operating Company, Inc., 529 F.3d 892 (9th Cir. 2008).
In that case the court found that a police department had violated the Fourth Amendment and state constitutional rights of employees and the people they exchanged text messages with, when they reviewed “personal” text messages created on devices owned and issued by the police department. It also found that the text messaging provider, Arch Wireless, violated the Stored Communications Act (SCA), 18 U.S.C. §§2701-2711, by providing transcripts of these messages to the employer.
Supreme Court
The U.S. Supreme Court agreed to hear an appeal of the case: City of Ontario, California, et al., Petitioners v. Jeff Quon, et al. (08-1332). The Justices could add some new law to the ability of companies to monitor and access their employees’ use of a company’s computer system.
Limitations
Although it sounds interesting, the case has some limitations that will likely make the decision underwhelming. The employees at issue are government employees, so the Constitution is implicated. You don’t have this issue with private employees. Second, the governmental employer accessed the information from the third party provider of the text-messaging system. The information was not on the government’s computer system itself. Third, the governmental employer did not have a clear policy on the use of the equipment and whether the messages were private or accessible by the government employer.
Background
The case originated when police officers claimed thier rights were violated when messages on department devices were read by their chief. Quon and the other officers had signed a statement declaring “users should have no expectation of privacy or confidentiality” when using devices furnished by the city. But shortly after text pagers were distributed, the officers were told by a supervisor they could use them to send messages, as long as they paid for messages that exceeded the monthly limit. It was understood that some of these messages would be personal and unrelated to police work. When the police chief learned that some officers were regularly exceeding the monthly limit, he asked for an audit and read the messages.
After Quon and the other officers learned their messages had been read, they sued. They lost in the Los Angeles Federal District Court, but won in front of the 9th Circuit.
References:
- Supreme Court Docket for 08-1332
- Opinion below (9th Circuit)
- Petition for certiorari
- Brief in opposition
- Petitioner’s reply
- Amicus brief of the League of California Cities and the California State Association of Counties
- Policies for Private Use of Company Computer Systems and Mobile Devices – prior post
- Court to review employer access to worker messages in The Washington Post
- Supreme Court may hear appeal on workers’ text message privacy by David G. Savage in The Los Angeles Times
I could see one line of argument here that text messages should have the same expectations of privacy as a personal telephone call on a company phone, rather than an email– after all, the worker is using the same device, and technologically is now often using the same packet-switching IT structure as a regular phone. So what’s the real difference between a phone call and a text message?
That said, I don’t know what the reasonable expectation of privacy is for a personal phone call. But technologically speaking, the lines that separate phone, text and email messages have been erased– so whatever the standard is for one, logically it should apply to all.
I agree that the lines between the different types of electronic communication are blurring.
There are a few quirks with text messages, especially the vintage of this case. With a phone call, the content of the call is generally not stored. In this case, the text messages were retained. The content was held by a third-party it was not on the government’s system, so there was a seizure from a third party. The billing for text messages was based on the content itself (the number of characters in the content).
On top of this, the employer was the government.
Given all these factors, I don’t think we get much insight on employers’ ability to monitor the communications of their employees.