Legal Technology - 9th Circuit Rules on Text-Message Privacy:


Most employees know that their bosses are usually within their rights snooping on workers' e-mail, but text messaging has been in murkier territory.

A federal appeals court sought to clarify matters in a ruling last month by distinguishing between electronic communication that employers store on their servers, or pay someone to store, and communication that is contracted out to third parties.

Employers must have either a warrant or the employee's permission to see messages that are not stored by the employer or by someone the employer pays for storage, the court ruled in a landmark opinion issued on June 18 in the matter of Quon v. Arch Wireless, et al. (No. 07-55282, DC No. CV-03-00199-SGL).

The ruling, by Judge Kim McLane Wardlaw from the 9th U.S. Circuit Court of Appeals in San Francisco, is being hailed by digital privacy advocates, and could create new administrative hurdles for companies to clear before handing out wireless devices to employees.

Employers may now need to use more concrete language in their privacy policies, and make sure that they explicitly assert access to text-messages as well as e-mail to encompass communications that are not under their physical control. To spare lengthy court battles later, written agreements covering employees' work-issued cell phones, for example, probably should say employers have the right to see all e-mail and text messages that workers send with the devices.

Among other privacy advocates, Jeff Chester, founder and executive director for the Center for Digital Democracy, 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," Chester says.

The ruling limits all kinds of entities' access to consumers' communications, he says: "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."

Corporate e-mail has typically been stored on a company's own servers or on server space it pays for, which employers control, according to federal law. Text messaging has typically been managed by outside providers.

The lower court had ruled that employers have access to text messages because they are stored by the outside contractors, but the 9th Circuit found that the storage was incidental. Greater privacy protections apply, the court said, because employers are paying only for messaging services.

It is not clear, however, how employers should now manage the relationship with an employee who splits the bill for a work-issued cell phone or other message device, a common arrangement. In that case, the employee might be reluctant to give his or her employer full access to text messages, since some 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?'" says Joel Reidenberg, a professor at the Fordham University School of Law and an expert on information privacy 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."