If your firm issues pagers or cell phones to workers for business purposes, now more than ever it’s going to be especially important to make sure that your IT and HR folks have crafted careful and specific usage policies.
The Supreme Court recently ruled on a case involving an employer that paid the bill for employees who used text messages for official business and an employee who thought his racy personal messages would stay private.
The City of Ontario, CA, gave cell phones to police officers so they could communicate via text message. The officers were told that while the devices were intended for official business, they could use them for private purposes as long as they paid for any overcharges on their accounts. The department would said it would not read the messages as long as employees paid the overage.
The city later changed its policy and decided the messages would no longer be private. The written policy stayed the same, but according to the city, management announced in meetings that the texts “are considered e-mail messages,” meaning they would be included in the city’s policy saying employee e-mail can be monitored by IT.
While investigating one officer who’d gone over his message allotment four times, the city discovered he’d exchanged hundreds of sexually explicit messages with several women.
When he was reprimanded, he and three of the women he was in touch with (two outside the police force) sued for violation of privacy.
A district court ruled in favor of the city, but the plaintiffs appealed, arguing they had a reasonable expectation of privacy regarding the messages. The appeals court agreed and reversed the ruling.
The case then went to the Supreme Court, which reversed again, ruling in favor of the city.
The justices ruled searching through the messages was a reasonable way to determine if they were work related. The decision was narrow — the Court was careful to point out that it was dependent on the specific facts of this particular case — but lawyers say the case offers clear advice for employers:
Have clear written policies describing what communications can be monitored by IT. That should keep employees from believing text messages, e-mails and other activities are private in the first place.
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Tags: California, decision, Ontario, Supreme Court, text messages
June 30th, 2010 at 2:29 pm
How can text messages be reviewed, unless they are viewed on the actual phone where the text message originated.
They can see what number the text was sent to and then do a reverse lookup of the phone number, however I don’t believe that text messages can be viewed otherwise or can they and how can they?
July 12th, 2010 at 12:40 pm
Text messages are saved on a central computer server before being passed to the receiving phone. These can be reviewed by anyone having authority to see them, including an employer, if they are sent/received during a time period when the employee has indicated on their time card that they were working for the employer. Also, now, they can be reviewed by an employer, if the employer is paying for the phones and/or the messaging service or cell phone provider. They also can be reviewed by anyone with a court order. For example, a prosecutor could subpoena a text message if it was sent by the cell phone of a driver, just before the driver was involved in a traffic accident.
Although cell phones account for less than 2% of all distracted driver auto accidents, they are easy to track and so have become the target of enforcement organizations and uninformed populists like Oprah. Unfortunately, Oprah and others have not attacked the primary causes of distracted driving. Number 1 is, of course, drugs and alcohol. Number 2 is smoking (looking for the ashtray, or cigarettes, dropping one on your lap, etc.). Number 3 is entertainment systems (finding a radio station, a favorite song, inserting a CD, etc.). Number 4 is eating and drinking — so why don’t we close all of the drive up windows at McDonalds — that would be just as stupid as banning the use of cell phones. These first 4 items account for ~90% of all distracted driver crashes — but we haven’t done anything to ban smoking while driving or banning music while driving. We just keep up the stupid attacks on cell phones.