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Ninth Circuit Says Employee Text Messages Sent on Company Account Cannot Be Disclosed to Employer

    Client Alerts
  • July 11, 2008

Some of the most important recent developments in employment law involve employee use of the employer’s electronic communications systems.  As use of e-mail, Internet connections, voice mail, and other systems becomes universal in the workplace, employers are increasingly concerned about the effects of employee misuse of these systems.  Misuse can range from excessive time spent on non-work activities, to liability for harassment or discrimination claims if the employer fails to stop employees from using their systems to engage in such behavior.

Courts in most states, including the Carolinas, take the position that employers are free to monitor electronic communications that use their systems.  Thus, employers can review e-mails on their servers without seeking employee permission.  Employers usually publish electronic communications policies in their handbooks to further reduce any employee expectations of privacy when using their employers’ systems.

Last month, the Ninth Circuit Court of Appeals issued a decision in Quon v. Arch Wireless Operating Co. that calls into question employers’ assumptions regarding their right to monitor at least text messages.  The plaintiff was a police officer in Ontario, California.  As part of his job, the City contracted with Arch to provide a certain volume of text messages for each officer each month.  If the officer exceeded his or her allotted volume, they were responsible for paying the excess.  If the officer failed to make the payment, the police department could audit the messages, by requesting copies from Arch.  The officer would then be charged for non-work related text messages.  In this case, the audit revealed sexually explicit messages by the plaintiff that resulted in a disciplinary investigation by the department.

The plaintiff sued both Arch and the city, respectively alleging violation of the federal Stored Communication Act (SCA) by Arch, and violation of federal and state constitutional rights by the city.  The district court dismissed the claims against Arch and the city.  On appeal, the Ninth Circuit reversed the lower court’s filings.  First, it concluded that Arch violated the SCA, classifying Arch under a provision of the Act that prohibits carriers from disclosing text message transcripts to parties other than addressees of the messages, even if they are the subscriber paying for the service.

Next, the Ninth Circuit found that the city violated the plaintiff’s federal and state constitutional protections against illegal search and seizure by reviewing the text messages.  The court reached this conclusion regardless of the fact that the city had adopted a clear handbook policy allowing such review, for which the plaintiff had provided written acknowledgement.  Given that the police department informally advised officers that the messages would not be subject to audit, the city created a reasonable expectation of privacy.

The constitutional claims in this case only apply to public employers.  Private sector employers are not subject to these protections.  For private employers, the more important aspect of this case is the likely reluctance of wireless carriers (the SCA would not apply to an employer’s review of e-mails residing on its own server) to provide them access upon request to records of communication on their own accounts.  This decision is not binding precedent outside of the Ninth Circuit, and many Ninth Circuit employment decisions are rejected by other federal appellate courts.  However, this decision stands as an important indicator that employer assumptions regarding their right to monitor electronic systems owned or paid for by them may be eroding.