Expectation of Privacy…

Supreme Court

So I have a question.

How many of you have an expectation that the text messages you send and receive on the phone, or other electronic device, provided by your employer are private?

I have no expectation privacy on devices owned by someone else – which is why I always had a work and a personal cell phone. But apparently some people think that they should have a right to privacy regarding electronic interactions that take place on employer owned devices. I’m curious where these people have been for the last ten years – just think of all the scandals regarding text messages over the last decade.   

The Supreme Court is hearing a case regarding the privacy of text messages. USA Mobility Wireless, Inc. v. Quon; USA Mobility Wireless, Inc. v. Quon

Most of the story is he said/he said regarding what the employee was told concerning their employer’s rules about personal text messaging on employer owned devices. As condensed from the SCOTUS website – at issues is:

  1. Whether a SWAT team member has a reasonable expectation of privacy in text messages transmitted on his SWAT pager, where the police department has an official no-privacy policy but a non-policymaking lieutenant announced an informal policy of allowing some personal use of the pagers;
  2.  Whether individuals who send text messages to a SWAT team member’s SWAT pager have a reasonable expectation that their messages will be free from review by the recipient’s government employer.

The interesting thing about the second issue is that it hinges on the Stored Communications Act that was part of the Electronic Communications Privacy Act of 1986.  Think about that – think about what the universe of telecommunications and computing looked like in 1986.

To give you some idea – Compaq introduced the first 386 PC, Apple introduced Mac Plus, and MS-DOS 3.2 was released in April of that year. IBM announced its first laptop computer weighing in at 12lbs. And cell phones were huge… not as in popular but in size and weight.   

What most people don’t understand is that the Supreme Court rules on points of law – not the case. So, the point of law in question is based on the understanding of technology in 1986. And if the individuals in this case have a “reasonable expectation” of privacy in regards to their text messages even though their employer owns the equipment.

N.B. – if any of you out there think that this ruling will in any way shape or form effect the privacy of any text messages/phone calls/emails/instant messages/web browsing for your corporate employer – it won’t. If the police department and county in question had a more stringent and updated wireless/computer policy this would have never gone to trial.

 So – back to the case.

 The 1986 act defines two types of services:

  • RCS – Remote computing service   
  • ECS – Electronic communication service

The law states that an ECS cannot divulge the contents of a communication (i.e. the texts sent and received) to anyone other than the intended recipient(s). However – if you are a RCS then you are able to release all data to the subscriber – (i.e. the person who pays the bills).  

So – an employer’s right to monitor their employees and an employee’s expectation of privacy in our modern world is being defined by Congress’ understanding of the implications of technology in 1986.

Anyone else see something humorous here?

According the 9th Circuit Court, Arch Wireless which provided the devices and holds the contract with the county, is by definition a Electronic Communication Service (ECS) and as such had no right to provide transcripts of text messages to the subscriber – the Police Department – since the subscriber was not the intended recipient of the messages.  

Looking from both sides of the issue I believe that employers have the right to know how their employees are using the equipment provided to them. When I managed teams I had an expectation that when they were paid for an hour of work they did an hour of work. We had individuals who abused their phone/web/email privileges. They decreased the productivity of the group and since we billed by the hour – they were, in effect, defrauding our clients.

As much as I feel we deserve privacy – I don’t believe we can expect it in the work place. All that this officer needed to do to prevent his text messages from being read by someone other than the recipient was to have his own device. That makes you both the intended recipient and the subscriber – so it would not have mattered if Arch Wireless was deemed a RCS or ECS – his messages would have remained private.

It will be interesting to see what the court does with this. Their decision will affect public employees and the law regarding privacy.

I’ll check in again on this issue when the opinions/dissents are written.

~ Tess Anderson

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