Courting trouble on text messaging? Check your monitoring policy

23 Jun Courting trouble on text messaging? Check your monitoring policy

San Diego, Calif. – The Ninth Circuit recently interpreted the Stored Communications Act in the context of text messaging. The decision (in Quon versus Arch Wireless Operating Co., Inc.) has broad implications for employers and others who monitor electronic communications, and also addresses the impact of public record laws on electronic monitoring.
The Quon case arose from the monitoring of employee communications on (Ontario, Calif.) police department-provided cell phones. The employees, police officers in this case, used department-provided cell phones in the course and scope of their employment, and also allegedly used them for personal use, including sending sexually-explicit messages. The department had a policy of monitoring e-mail and other forms of communications, and also banned personal use of systems, but the policies did not explicitly cover text messaging.
There were later meetings where the department allegedly stated that text messages were covered by general policy, but there was evidence of an informal policy not to monitor, which was evidenced by the fact that personal use was acknowledged and monitoring was not done unless the employee refused to pay for “excessive” personal use.
The provider in this case, Arch Wireless, kept a backup copy of the text messages.
Since it paid for the devices, the department was the “subscriber” under the Stored Communications Act, and based upon this conclusion obtained copies of the content of the backup copy of the text messages from the service provider without employee consent. The employees sued, claiming that the disclosure of the content of communications violated the Stored Communications Act, their privacy rights, and other statutory protections.
The court initially examined the scope of the Stored Communications Act, and whether Arch Wireless was a “remote computing service” or an “electronic communication service,” because the answer to that question would impact whether the content of the communications could just be disclosed to the recipients, or also to the subscriber without consent. The court concluded that Arch Wireless was an electronic computing service and, as a result, it could not disclose the content to a subscriber without consent of a recipient.
Thus, its disclosure to the department, the subscriber, according to the Ninth Circuit, violated the Stored Communications Act and the employees’ privacy rights.
Privacy expectations
The Ninth Circuit also examined whether the users of text messaging have a reasonable expectation of privacy regarding text messages that are stored on the service provider’s network, ultimately concluding that there was a reasonable expectation of privacy, at least as to the service provider. This expectation was not endless because the court noted that one of the recipients could have permitted the department to review the messages at issue.
However, the court clearly stated that as a matter of law the plaintiffs had a reasonable expectation of privacy that the messages would not be reviewed absent the consent of a sender or recipient. This was true, despite the monitoring policy, because the court believed that the “operational reality” revealed that text messages were not monitored in most cases, including if personal use was paid for, and that many of the employees were aware of this fact.
The court also addressed the interaction of public record laws, specifically California’s law, concluding that even assuming the text messages were public records, the law did not defeat an employee’s reasonable expectation of privacy.
Fivefold importance
The import of this case is fivefold, and these key takeaways should be considered by all employers.
First, this case makes clear the importance of having clear and precise monitoring policies.
Second, it makes clear that courts will go behind those policies and look at the “operational reality” of monitoring to see if the review of electronic communications is appropriate, so ensuring that your monitoring policy is followed consistently is critical.
Third, it makes clear that even if an employer owns a device, has a monitoring policy, and pays for the service, monitoring of the content of communications may not always be appropriate, so care must be taken before automatic monitoring is conducted.
Fourth, this case clarifies any doubt that text messages should be included in monitoring policies, if relevant.
Fifth, at least in California, public entities should be cautious in reviewing employee communications based upon the assumption that they are not private because they are public records.
Final note
Apart from these issues, one other fact regarding wireless devices is worth noting. Though wireless devices are now common in business, it should be much clearer that monitoring e-mail on these devices is covered by traditional e-mail monitoring cases.