The federal Ninth Circuit Court of Appeals covering California and Western U.S. states held last week that even if employees use employer-supplied devices and service for text messaging, neither the employer nor the employer-paid phone/telecom network which carries the messages, can review or disclose the content of the employee text messages without the employee’s consent.  The Ninth Circuit found that because the text messaging (wireless) service provider stores the messages on its own servers, they were not covered by a consent the employee may have given for employer access to emails and other contents on workplace PCs and computer systems. 

First, the Ninth Circuit found that the wireless network provider violated the federal Stored Communications Act dating from 1986 (18 U.S. Code §§ 2701-2711, part of the Electronic Communications Privacy Act), by turning over stored text messages to its customer, the employer, without the consent of the individual “recipients” to whom the messages were sent.  Next, the Court found that under California’s strict constitutional privacy clause (and the federal Fourth Amendment because the employer in this case was a government agency), employees had a reasonable expectation of privacy in the content of their text messages sent on the employer-provided devices:  despite the employer’s written policy generally negating expectations of privacy, employees had been told by supervisors that moderate levels of personal use were acceptable and that their personal messages would ordinarily not be examined by the employer.

The Ninth Circuit’s new decision stands in contrast to existing California precedent that a clear, express employer policy can successfully negate any expectation of privacy in employee emails, at least to the extent they are stored on the employer’s computer system.  The decision leaves unanswered for now, some additional questions:  (1) Can a sufficiently clear and consistent employer policy negate employee expectations of privacy in text messages on employer-paid systems; (2) Does the Court’s ruling also apply to, for example, Blackberry message systems (as its logic might suggest)?; (3) Does the Ninth Circuit’s ruling under the Stored Communications Act also carry over even to employee emails, to the extent they are stored on an email service provider’s servers, rather than on the employer’s in-house servers?  (Quon v. Arch Wireless, et al., 9th Cir. No. 07-55282, filed June 18, 2008).

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