9th Circuit to Employers: Don’t Look at Workers’ Text Messages

Labor and Employment

9th Circuit to Employers: Don’t Look at Workers’ Text Messages

Posted Jun 18, 2008, 05:03 pm CDT
By Martha Neil

Venturing into what a federal appeals court panel described as a new frontier of electronic communications law, the San Francisco-based 9th Circuit U.S. Court of Appeals decided today that employers have no right to read their employees' text messages without their consent.

Plus, even if employers pay for the service, providers are prohibited by the federal Stored Communications Act from releasing the text message contents to them, a three-judge panel held. The ruling came in the case of an Ontario, Calif., police officer whose boss got his text messages from the service provider and had them reviewed to see if personal communications were causing him to exceed his alloted service level, reports the Los Angeles Times.

The panel said that reasonable expectations of privacy vary depending on the specific facts and circumstances, and it indicated that the availability of other, less intrusive, ways for the police department to monitor the amount of text-messaging services that the officer was using played a role in the decision.

"The extent to which the Fourth Amendment provides protection for the contents of electronic communications in the Internet Age is an open question," writes Judge Kim McLane Wardlaw in the opinion.. "The recently minted standard of electronic communications via e-mails, text messages and other means opens a new frontier in Fourth Amendment jurisprudence that has been little explored."

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Posted by Kelly - 2 months, 1 week, 2 days, 11 hours, 28 minutes ago

Seems to me that if employers are paying for the cell phone and their employees are exceeding their data plans by over-texting, they should just have employees sign contracts stating that they will pay the balance in excess of whatever their plan covers. Business people don’t text each other typically, so the employers could pay for a modest texting plan to cover occasions that business-related texting may occur, and anything above that amount could be deducted from the employees’ pay. That would be incentive to stop, no? No need for the employers to actually read the messages.
Posted by haven - 2 months, 1 week, 2 days, 10 hours, 54 minutes ago

Kelly,

Actually I use text messaging all the time in my legal practice, to communicate quickly with my secretary and staff at my office during court hearings, depositions, mediations, etc… It is surprisingly convenient, discreet compared to a phone call, and easy.

that being said, I agree with your solution. there are easy ways to solve problems, like the one you suggested, that prevent what basically amounts to a nosy boss from being able to gather fodder for gossip
Posted by Grant - 2 months, 1 week, 2 days, 9 hours, 12 minutes ago

Automatic deductions from employee pay probably would violate fair labor standards laws. Employers don’t usually have the remedy of self-help to deduct expenses or impose penalties on employees, because the availability of the remedy could easily lead to abuse and ultimately to underpayment for work performed.

The real problem here is the 9th Circuit continuing to make common sense a stranger to the courthouse. A public employee who uses public property to engage in a communication should have no expectation the communication is private in regard to his/her public employer. I want to know that public teachers, fire fighters, police, and employees of the courthouse, statehouse, and city hall are using their government provided cars/computers/phones to benefit the public, rather than for private benefit.
Posted by EBC - 2 months, 1 week, 2 days, 6 hours, 12 minutes ago

Grant, I wholeheartedly agree. If you want proof, go check out the case against the Mayor of the City of Detroit.
Posted by abc - 2 months, 6 days, 3 hours, 37 minutes ago

The story, and especially the caption, is misleading. It gives the impression that this case affects all employers. Civics 101 - the Fourth Amendment protects against unreasonable searches and seizures by the government (in this case a city police department). A more accurate caption should be: 9th Circuit to Government Employers.

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