Employee Right of Privacy in Text Messages

By: Melissa M. Hall, Esquire mmh@muslaw.com and Jane Lewis Volk, Esquire jlv@muslaw.com

In June 2008, the Ninth Circuit Court of Appeals issued a decision regarding an employee’s right of privacy in text messages. Although the decision is not binding in Pennsylvania, the case presents an interesting issue of which employers should be aware.

In Quon v. Arch Wireless Operating Co., Inc., the Court held that an employee did have a reasonable expectation of privacy in text messages sent via an employer-provided pager. The employer contracted with Arch Wireless to provide text messaging services and distributed pagers to its employees. The contract provided for a certain number of characters per pager, per month after which the employer required the employees to pay for any overages. Quon exceeded his character limit on several occasions and, as required, paid for the overage charges. The employer informed Quon that, so long as he continued to pay for any overages, his text messages would not be audited. Notably, although the employer had a “Computer Usage, Internet and E-mail Policy” in place which put employees on notice that they had no expectation of privacy in the use of those devices, the written Policy did not include the pagers. The employer did, however, verbally inform employees that the text messages sent from the pagers were considered e-mail under the Policy.

Despite the employer’s assurance that it would not review the content of text messages, the employer did audit Quon’s text messages and determined that, aside from being over the allotted number of characters, many of the messages were personal and not business related. Quon subsequently sued the employer for violations of their Fourth Amendment right to privacy. The Court held that the employees had a reasonable expectation of privacy in the content of the text messages because (1) the employer had a practice of not reviewing text messages for content and (2) text messages were not significantly different from email, which had been afforded privacy protections. However, the Court noted that the employees had no privacy interest in the address or phone number used to send the text messages.

This decision is an important reminder to employers to issue and enforce consistent policies reminding employees that, even if personal use of company communication devices is permitted, there should be no expectation of privacy.

For more information about this decision or other employee policy issues, contact Melissa M. Hall at mmh@muslaw.com or Jane Lewis Volk at jlv@muslaw.com.