An Employer’s Right to Monitor E-Mail and Text Messages Remains Strong

By: TERESA M. THOMPSON

July 2008

Employers continue to have the right to access, monitor, and review an employee’s use of e-mail and text messages when that employee is using company-provided technology. Yet, recent publicity of a Ninth Circuit Court of Appeals’ decision has created a new buzz about the privacy rights of employees. This new decision, however, does not create an exception to the generally accepted rule: employees do not have an expectation of privacy in the communications that they send with company-provided technology. To the contrary, it outlines the importance of consistent and appropriate enforcement of electronic use policies.

So why is this decision creating such a buzz? A brief review of this decision is necessary to answer this question and to understand why an employee is really not free to use company-provided technology for personal reasons without ramifications. The plaintiffs in the Quon v. Arch Wireless Operating Company decision included several employees of the Ontario, California Police Department, including a sergeant – Jeff Quon. The case centered on Sergeant Quon’s use of a company-owned pager, which Quon used to text message (other pagers and private cell phones) for both business and personal reasons. The case arose when the City of Ontario requested and received transcripts of the text messages from Arch Wireless (the outside company which provided the wireless text messaging services for the City) when it felt that Quon had overused his pager. The transcripts revealed that many of the messages sent from Quon’s pager were personal in nature and sexually explicit.

The plaintiffs sued Arch Wireless (claiming violations of the Stored Communications Act (SCA) and the Fourth Amendment) and the City of Ontario (for violations of the Fourth Amendment and a state privacy law). On appeal, the Ninth Circuit addressed the claims under the SCA and the Fourth Amendment (the Court did not evaluate the state privacy claim because it concluded that claim was encompassed by the Fourth Amendment claim). Thus, at first glance, there is certainly a question about whether this decision actually extends to private employers since the Fourth Amendment applies only to public employers (while the state privacy law would extend to private employers). However, the Ninth Circuit broadly addressed the right of privacy. So, out of an abundance of caution, we should presume this case may apply to private employers.

The first issue addressed by the Court under the SCA will only apply to providers of communications services – such as Arch Wireless. In short, the Court concluded that because Arch Wireless provided an “electronic communication service” to the City, it was not permitted to release the transcripts to the City absent the written consent of the addressor, addressee, or intended recipient of the communication.

The second issue focused on an employee’s reasonable expectation of privacy in text messages sent from the company-provided pager. The Court concluded that users of text messaging services – such as those provided by Arch Wireless – have a reasonable expectation of privacy in their text messages stored on the service provider’s network. However, the Court did not end its analysis with that broad conclusion. Instead, it provided exceptions to this expectation of privacy – such as consent of the writer or recipient. This holding also implies that an employer may have the right to access messages contained or stored in the actual device (which is company property).   

Yet, the most important exception for employers relates to Sergeant Quon’s reasonable expectation of privacy in light of the City’s Computer Usage, Internet, and E-Mail Policy. The City had a very general computer usage policy which arguably (but not clearly) addressed text messaging and which stated that users should have no expectation of privacy in the use of company-provided technology. Under most circumstances, the Court concluded this would be enough to defeat any expectation of privacy. However, the policy did not depict the “operational reality” within the Department. To the contrary, a City supervisor had nullified the effectiveness of the policy by verbally advising staff that he would not audit the pagers so long as the employee paid for any overage. Thus, the “informal policy” implemented by the supervisor’s statements created the reasonable expectation of privacy and defeated the written policy.

So, what is not working? The answer is quite simple – employers often fail to implement appropriate and effective policies; fail to enforce the policies they have; provide inconsistent messages to their employees about how they plan to enforce their polices; and fail to conduct employee and management training to educate management and staff alike about the consequences and impacts of using company-provided technology for inappropriate purposes.

This new decision is a ringing endorsement of our mantra – enact appropriate and effective policies for employee use of company-provided technology. Most of you probably have those policies in place. But beware: solely enacting a policy is ineffective. Once enacted you have to take steps to enforce those policies. You must also explain the policies and your expectations to  employees and managers. Employees will not change their use of technology until they fully understand the consequences of misuse or abuse.

Technology in the workplace is a new and ever changing source of potential liability to employers. However, organizations also benefit greatly from employee use of technology. Properly balancing those benefits and risks can increase employee productivity, improve employee morale, and improve employee relations. For assistance in this area, please contact one of our Employment & Labor Law attorneys.