Text-message ruling could affect boss rights
SAN FRANCISCO (AP) - June 19, 2008 A federal appeals court sought to clarify matters in a ruling
Wednesday by distinguishing between electronic communication that
employers store on their servers, or pay someone to store, and
communication they contract out for.
Employers must have either a warrant or the employee's
permission to see messages that aren't stored by the employer or by
someone the employer pays for storage, the court said.
The ruling from the 9th U.S. Circuit Court of Appeals in San
Francisco, hailed by digital privacy advocates, could create new
administrative hurdles for companies to clear before handing out
wireless devices.
Employers may now need to use more concrete language in their
privacy policies and make sure they explicitly assert access to
text-messages as well as e-mail, to encompass communications that
aren't under their physical control. To spare lengthy court battles
later, written agreements covering employees' work-issued cell
phones, for example, probably should say employers have the right
to see all e-mail and text messages their workers send with the
devices.
Among other privacy advocates, Jeff Chester, founder and
executive director for the Center for Digital Democracy, praised
the ruling.
"Mobile privacy is increasingly a political and legal
battleground - it's a very confusing regulatory landscape, there
are no clear rules in the crazy quilt of the mobile communications
systems," Chester said.
The ruling limits all kinds of entities' access to consumers'
communications, he said.
"Preserving as much privacy for the mobile consumer, and
limiting the ability of government and commercial entities to
readily access your mobile information is important, and the court
did the right thing here," Chester said.
Corporate e-mail has typically been stored on a company's own
servers or on server space it pays for, which employers control,
according to federal law. Text-messaging has typically been managed
by outside providers.
The lower court had ruled that employers have access to text
messages because they're stored by the outside contractors, but the
9th Circuit found that the storage was incidental. Greater privacy
protections apply, the court said, because employers are paying
only for messaging services.
It's not clear, however, how employers should now manage the
relationship with an employee who splits the bill for a work-issued
cell phone or other message device, a common arrangement.
In that case, the employee might be reluctant to give his
employer full access to his text messages, since some are
presumably personal.
"It's going to highlight for businesses the need to think
through, 'What kind of information do they need? What kind of
access do they need to have? And what kind of documentation do they
need to have in place to get that access?"' said Joel Reidenberg,
a professor at the Fordham University School of Law and an expert
on information privacy law. "A ruling like this is going to force
companies to be more nuanced and careful in their data management,
and that's a good thing."
The ruling came in a lawsuit filed by police officers in the
Southern California city of Ontario alleging the police department
illegally examined text messages they sent from work-issued pagers.
The department wasn't investigating the officers for a crime. It
was trying to determine how much money one of them, Sgt. Jeff Quon,
a member of its SWAT team, should pay for personal text messages.
The officers argued - and the appellate court agreed - that the
department shouldn't have been able to view the messages without
their approval or a court order. They rested the argument on
existing legal distinctions between service providers being paid
for storage and those that aren't.
In the case of the Ontario police officers, the 9th Circuit
agreed they had a reasonable expectation of privacy in their text
messages because the department had an informal policy of not
examining text messages that employees paid for. The court said the
department's search violated the officers' Constitutional
protections against unreasonable searches and seizures.
"The holding that text messages and e-mail are protected by the
Fourth Amendment is an immensely important one which gives the
victims of unlawful searches the ability to suppress illegally
obtained evidence," Jennifer Granick, civil liberties director at
the Electronic Frontier Foundation, wrote in a posting on the
organization's Web site.