The courts have consistently upheld business rights to information stored on company-owned information assets, including email and other messaging media. There were limits, like restricting data retrieval to items actually related to business transactions or relavant to an ongoing investigation. Now, however, a U.S. Federal court has placed messages sent via contracted services within the scope of employee expectation of privacy.
A ruling by a three-judge panel in the U.S. Ninth Circuit Court of Appeals has established new privacy rights for employees who use employer-issued cell phones, pagers and computers to send personal text messages. The judges upheld the verdict in Quon v. Arch Wireless, which determined that if an employer contracts with an outside provider for messaging -- as most do -- it does not have the right to ask the service provider for transcripts of the text messages employees send out. The same concept can be applied to e-mail communications if the employer outsources that service instead of maintaining it on an internal server . Source: Workplace Text-Messaging Ruling Wows Privacy Advocates, Erika Morphy, TechNewsWorld, 20 June 2008
This ruling can have interesting ramifications, extending far beyond employee privacy issues. For example, it will be interesting to see what happens when, during litigation, text messages are believed to contain discoverable material. Another interesting twist is the inability of managers to track the movement of sensitive information (yes, in small amounts) or violations of HR policies that foster a hostile work environment (e.g., harrassment, racial or sexual epithets, etc.). It isn't reasonable to shut down text messaging as a productivity tool, just like it isn't practical to prohibit the use of smartphones or PDAs. Rather, this is just one more thing for the innovative security manager to deal with. This may not be the last word, however. The U.S. Court of Appeals for the Ninth Circuit is arguably the most liberal court in the country. It's possible this is just an aberration, a small bump in the road that will be removed when and if other courts--including the Supreme Court--weigh in on this issue.