The U.S. Supreme Court will decide shortly whether to hear the employer’s appeal of the matter, Quon v. Arch Wireless, wherein a 9th Circuit Court of Appeals ruled that employees have a constitutional right to privacy in their text messages, even those containing sexually explicit content sent to co-workers. The case concerned two police officers whose text messages were read by their chief.
The officers were informed of the department’s policy that text messages were not private, and signed statements acknowledging such policy. However, they were told that any texts over 25,000 characters/month would be paid by the employee, out-of-pocket. The two officers exceeded the limit. Out of concern of a misuse of department time, the chief read the texts.
The two officers sued the police department and wireless carrier, who retrieved the text messages.
The 9th Circuit ruled that 1) reading the messages was an “unreasonable search;” and 2) the wireless carrier’s retrieval of the messages violated the Electronic Communications Privacy Act of 1986. Under the Act, messages cannot be retrieved without consent from the sender or recipient.
The department is concerned about the possible expansive interpretation of the ruling – namely that privacy will extend to all electronic communications – including emails. The ruling caused quite a clash among 9th Circuit judges, including one judge who filed a 10-page dissent.
Employee rights lawyers find the opinion timely in an age where the work/personal time is blurred by cell phones, laptops and remote login access.
Similarly, earlier this year, a New Jersey Court of Appeals, ruled in Stengart v. Loving Care, that an employee’s emails sent to her lawyer from her work laptop were privileged. The case is currently pending in the New Jersey Supreme Court.
In November of this year, The Wall Street Journal reported that 38% of companies routinely screen employees’ outgoing emails.