Lynchburg Business

Right to Privacy in the Workplace: Emails, Text Messages

Issue: April 2010 by Joshua Dalrymple, Esq. in Inside The Magazine, Legal

The United States Supreme Court is set to hear arguments this month about whether an employer can view an employee’s text messages. The case, Ontario v. Quon, involves a police officer who was fired after supervisors read some sexually explicit text messages on a pager provided to the officer by the city. The Supreme Court will be reviewing the ruling of the 9^th Circuit Court of Appeals that, under the Fourth Amendment, “[The officer] had a reasonable expectation of privacy in the content of the text messages, and the search was unreasonable in scope.”

While the Fourth Amendment certainly applies to government employees, employees in the private sector cannot claim the same protection. However, this case is still important to private sector employees because the 9^th Circuit stated that the “recently minted standard of electronic communication via e-mails, text messages, and other means opens a new frontier in Fourth Amendment jurisprudence that has been little explored.” It seems the Supreme Court is interested in exploring this new frontier and will likely spend some time comparing and contrasting private sector and government employee rights, which should lay a framework for employers to follow.

A clear ruling that sets a standard would be a welcome relief for employers since the current standard for what an employer is allowed to do is somewhat ambiguous. For instance, the standard for monitoring employee email varies depending upon the type of communication and employer’s reason for monitoring. An employer is generally allowed to monitor an employee’s email as long as there is some legitimate business purpose such as creating records in case a dispute arises, ensuring compliance with regulatory or statutory rules, customer care, prevention of crime and security against hackers, or investigating the unauthorized use of the telecommunication system. This is a broad standard that gives the employer carte blanche when it comes to monitoring employee email. As long as the employer can assert a legitimate business purpose, then the court will allow employer monitoring of employee email.

In addition to such broad latitude within the law, many employers ask employees to sign an acknowledgement that the employee knows and approves the employer’s monitoring of electronic communication. The employee is usually asked to sign the acknowledgement at the time of hiring. Generally, these agreements will be upheld, much the same as a confidentiality or non-compete agreement.

Here’s where it starts to get complicated: Contrast the broad standard for monitoring employee email with the ruling in Van Alstyne v. Electronic Scriptorium, Ltd., a 4^th Circuit Court of Appeals case. This case involved an employer accessing an employee’s personal email account. The court ruled that an employer’s unauthorized access of an employee’s personal email account violates the Stored Communications Act (SCA), and awarded the employee money damages. What is important about this case is that the employee was not required to show actual damages in order to pursue an award of punitive damages and attorney’s fees. This means that when an employer violates the SCA, they may have to pay up even if the employee suffered no financial damage.

Unfortunately for employers, the SCA is a confusing and dense body of law that only gets more complicated when it comes to text messages. Here’s why: The SCA was written in 1986, and the understanding and operation of electronic communication has changed dramatically since then. In fact, text messaging was not even contemplated or invented when the SCA was written, but it is certainly a form of electronic communication to which the SCA applies.

Not only can an employer be held responsible for violating the SCA, but the service provider can also be at risk. In Ontario v. Quon, the 9^th Circuit explored the ramifications of the SCA on text messaging service providers. They defined the service provider in that case, Arch Communications, as an “electronic communication service” (ECS) under the SCA. The court stated that “[the] SCA prohibits an ECS from ‘knowingly divulg[ing] to any person or entity the contents of a communication while in electronic storage by that service,’ unless, among other exceptions…that person or entity is ‘an addressee or intended recipient of such communication.’” Basically, a text messaging service provider is in violation of the SCA if it provides the content of text messages to the account holder, which is generally the employer.

What does this mean for the employer? I think it means that text messaging providers are not going to touch this issue with a 10-foot pole. Even if the employer is allowed to review employee’s text messages on an employer provided account, which is questionable, the service provider will probably not supply those records with anything short of a court order. The last thing they need is an angry and embarrassed employee armed with SCA protections and no need to prove actual damages. It is a recipe for disaster, and, like many areas of federal regulation, the only way to prevent it is to avoid it altogether.