The Supremes Rule on Privacy Rights

Back on Feb. 16, 2010 I wrote a post entitled Privacy in the Workplace: Email Does Not Equal Texting. This dealt with a police department checking the text messages of a police officer who was using his department device to send text messages to his girlfriend. The department checked on these messages and disciplined him for violating department policy. The policy said that the department had the right to monitor email and Internet activity. After he was disciplined the officer sued for invasion of privacy and the 9th Circuit Court of Appeals ruled in his favor, saying that the policy did not cover texting.

Well the U.S. Supreme Court ruled on that yesterday (June 17) and overturned the 9th Circuit. (Not an infrequent event by the way.) They held that the employer, the police department, had the right to check text messages and that this was reasonable in the course of business. They did not rule on the issue of "reasonable expectation of privacy" given the rapidly changing landscape of communication, but they did say that even if the officer had had such an expectation the department checking things out was not unreasonable given the circumstances.

Because this was a public sector case the implications for private sector employers is not clear. However, in my opinion, this is clear evidence of  the need for a good policy that clearly states what an employees right to privacy in the workplace is and what the rights of the employer are in checking company issued devices. It means that you need to clearly state that ALL company owned devices used for communication purposes, to include email, Internet, texting, phone, etc. may be monitored and employees should expect that communication using those devices may be inspected. Of course some states are stricter in what they allow, so you need to be aware of state and local law regarding privacy in the workplace.

Click on the link I provided above to my previous post for further information.

Privacy in the Workplace: E-Mail Does Not Equal Texting

Most organizations with good HR professionals will have a written policy that specifically says "..that while at work employees should have no expectation of privacy." This allows the company the freedom to check email and Internet visits if done on a company device. This usually include mobile phone usage as well. Unfortunately a recent ruling by the 9th Circuit Court of Appeals (This is the notorious court in San Francisco) makes it clear that when it comes to texting, employees may have a right of privacy, regardless of who owns the device.

In  Court will rule on privacy of text messages sent on employer-owned devices, a December 15, 2009 article that appeared in the Los Angeles Times, reporter David Savage talks about a case involving the Ontario, CA police department. A few officers were suspected of misuse of their official mobile devices so the department demand from the wireless provider the records and then reviewed them. The officers had been told officially that the devices were for official use, but a supervisor had told them they could be used for personal use as well. The written department policy stated it "...reserves the right to monitor and log all network activity including e-mail and Internet use, with or without notice." However, "...the U.S. 9th Circuit Court of Appeals broke new ground by ruling that the police officers had a "reasonable expectation of privacy" in their text messages. The officers had been led to believe by a supervisor that the devices were also for personal use, the appeals court said."

The U.S. Supreme Court has taken this case on its schedule and a decision is due in June 2010. Their decision may significantly alter privacy in the workplace as it relates to computers, the Internet, E-mail and mobile devices, with which, up to this time, companies have been allowed to tell employees they should have expectation of privacy.

In the meantime your policies that deal with workplace privacy and the use of company or organization devices should be changed to include texting. An explicit statement should include email, Internet, phone records and texting records for company owned devices as areas where employees should have NO expectation of privacy. And supervisors should be CLEAR on what the policy is and not deviate from it. That was a major part of the problem in this case.

We will see in June if we have to change the policy again. Let's hope the Supremes have more sense than the 9th Circuit.