June 20, 2008

Court Ruling Strengthens Text Message Privacy

While most people are aware that employers can monitor their workers' email, other forms of communications, such as text messages, are less straightforward. 

A federal appeals court ruling issued Wednesday aims to clarify limits on firms seeking access to workers' electronic communications. In particular, the new ruling from the 9th U.S. Circuit Court of Appeals in San Francisco could make it more difficult for companies to monitor workers' communications on wireless devices. 

The decision, praised by digital privacy advocates, sought to distinguish between electronic communications that employers store on their servers, or pay someone to store, and communications in which they hire outside firms to manage. The court said that employers must obtain either the employee's permission or a warrant to view messages that are neither stored by the employer or by someone the employer pays for storage.

As a result of the ruling, employers may now need to include more explicit language in their privacy policies to ensure they assert access to text-messages as well as e-mail, and to include any communications that aren't under the physical control of the company. To prevent legal battles, written agreements involving employees' work-issued cell phones, for example, should include language that says employers have the right to view all text and e-mail messages their workers send and receive with the devices.

Jeff Chester, founder and executive director for the Center for Digital Democracy, was one of many privacy advocates who praised the ruling.

"Mobile privacy is increasingly a political and legal battleground - it's a very confusing regulatory landscape, there are no clear rules in the crazy quilt of the mobile communications systems," he told the Associated Press, adding that the court's decision limits all types of entities' access to consumers' communications.

"Preserving as much privacy for the mobile consumer, and limiting the ability of government and commercial entities to readily access your mobile information is important, and the court did the right thing here," he said.

Usually, corporate e-mail is either stored on a company's own servers or on server space it purchases from other firms, which under federal law is controlled by employers. But text messaging has typically been managed by outside firms.

The lower court had ruled that employers have access to text messages since they are stored by outside contractors.  However, the 9th Circuit found that the storage was incidental, and that greater privacy protections apply since employers are paying only for messaging services, not the storage.

However, it is unclear how employers should handle a situation in which an employee splits the bill for a work-issued cell phone or other message device, a common arrangement at many firms. The employee might be hesitant to allow his employer full access to his text messages in that case, since some of the messages are presumably personal.

"It's going to highlight for businesses the need to think through, 'What kind of information do they need? What kind of access do they need to have? And what kind of documentation do they need to have in place to get that access?'" said Joel Reidenberg, an expert on information privacy law and professor at the Fordham University School of Law.

"A ruling like this is going to force companies to be more nuanced and careful in their data management, and that's a good thing."

The appeals court ruling was a result of a lawsuit filed by police officers in Ontario, CA,  who claimed the police department illegally examined text messages the officers sent from work-issued pagers. The department was not investigating the officers for a crime, but was instead trying to determine how much money one of them, SWAT team member Sgt. Jeff Quon, should pay for personal text messages.

The officers argued that the department shouldn't have been able to view the messages without either the officers' approval or a court order, based on existing legal distinctions between service providers being paid for storage and those that aren't.

The appellate court sided with the officers, saying they had a reasonable expectation of privacy in their text messages because of the department's informal policy of not examining text messages paid for by employees.   The department's search, the court said, violated the officers' Constitutional protections against unreasonable searches and seizures.

"The holding that text messages and e-mail are protected by the Fourth Amendment is an immensely important one which gives the victims of unlawful searches the ability to suppress illegally obtained evidence," wrote Jennifer Granick, civil liberties director at the Electronic Frontier Foundation (EFF), in a posting on the organization's Web site.