On Thursday (June 17, 2010) the U.S. Supreme Court ruled on the City of Ontario, California v. Quon case. I wrote about this sexring case earlier and its implications for corporate technology acceptable use policies (AUP). The case involved the use of text pagers issued to officers by the city police department. The city issued the pagers for City use, under a general acceptable use policy. The officer in question consistently went over the allotted limit on messages which caused his supervisors to get stored text messages from the service provider. The City discovered that many of the messages were not work-related but were “sexting” or sexually explicit personal text messages. The officer claimed that the search violated the Fourth Amendment.
The Supreme Court ruled unanimously that the police department’s actions were reasonable, and thus did not violate the constitutional rights of the police officer. Justice Kennedy’s opinion ruled narrowly, to avoid a final definition of electronic privacy.
Prudence counsels caution before the facts, in this case, are used to establish far-reaching premises that define the existence, and extent, of privacy expectations of employees using employer-provided communication devices. Rapid changes in the dynamics of communication and information transmission are evident not just in the technology itself but in what society accepts as proper behavior. At present, it is uncertain how workplace norms, and the law’s treatment of them, will evolve.
According to the Center for Democracy & Technology (CDT), the Supreme Court faced an opportunity to curtail workplace privacy (or electronic privacy generally) in this case. However, the Court applied the O’Connor v. Ortega (1987) precedent, that government employees generally retain their Fourth Amendment privacy rights, and it assumed that government employees may have a reasonable expectation of privacy even in communications they send during work hours on employer-issued devices.
The CDT says the message to government employers is that the courts will continue to scrutinize employers’ actions for reasonableness, so supervisors have to be careful. Unless a “no privacy” policy is clear and consistently applied, an employer should assume that employees have a reasonable expectation of privacy and should proceed carefully, with a good reason and a narrow search, before examining employee emails, texts, or Internet usage.
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As we always try to tell our clients, make sure that there is a clear statement of no privacy in all policies and policy enforcement actions and as part of their policies, companies should discourage employees from using personal accounts to conduct company business.
Ralph Bach has been in IT long enough to know better and has blogged from his Bach Seat about IT, careers, and anything else that catches his attention since 2005. You can follow him on LinkedIn, Facebook, and Twitter. Email the Bach Seat here.
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