Text Message Policies: Privacy Expectations and Employees

By Stephanie Jordan
in

Here’s a reminder to employees: your employer may legally read the text messages you send. In June the Supreme Court, in the case of City of Ontario v. Quon, unanimously ruled that the City of Ontario had the right to audit messages sent by an employee over a company-issued pager. The California city, in its “Computer Usage, Internet and Email Policy” states that it has the right to monitor and log all network activity, including email and Internet use and that “users should not have the expectation of privacy or confidentiality when using these resources.” Quon had signed an acknowledgement of the policy.

What made this case interesting was that the text messages were being sent not over the City network, but instead over the radio frequency of a third-party wireless service. At the time the pagers were distributed, the City stated that the text messages would be treated in the same manner as emails and as such were covered by the electronic policy.

The trouble started when Quon (and others that had received the pagers) regularly exceeded the character limits set by the City. The cost of the character overage was the responsibility of the individuals. Quon paid for his overage amount, when it occurred. The City administrator, in an effort to explore if the character limit was set appropriately, requested the third-party to provide the transcripts of the messages to determine if the overage was due to personal use or work-related use. It was discovered that in one month Quon sent 456 messages during work hours, of which no more than 57 were work related. Quon was disciplined for this non-work messaging activity, but he contended that his messages should have remained private and were protected by the ban on “unreasonable searches and seizures” found in the Fourth Amendment to the United States Constitution.

The intent of the audit, as well as if the third-party was at fault for turning over the transcripts, was probed particularly in this case and its appeals. If the reason for requesting the third-party transcripts of the messages had been to see if Quon was “wasting time” then the City may have indeed been in trouble. Since the review was to see if the character limits were appropriately set and to ensure that employees were not being asked to pay for possible work-related costs, the court deemed that the Fourth Amendment was not violated.

The City of Ontario’s Computer Usage, Internet and Email Policy also strengthened the City’s case. This emphasizes the importance of having a policy for electronic communications. If Quon had not signed the policy, the City very well could have lost the case because the employees right of “reasonable expectation of privacy” could have been considered violated by the audit.

 EDITOR’S NOTE: Thanks to Smarsh for the story lead. 

Published July 22, 2010