It has been well-settled that employers have a right to attach whatever conditions they want when it comes to accessing or inspecting workplace computers. So much so, that it does not even have to be reasonable. However, if the terms and conditions involving computer usage, Internet, e-mail, or other corporate communication systems, are not carefully outlined in a corporate policy that is acknowledge by the employee, then employers could be exposing themselves to liability for violating, among other things, the employees Fourth Amendment rights under the U.S. Constitution.
In Quon v. Arch Wireless Operating Company, Inc., the U.S. Ninth Circuit Court of Appeals concluded that the Ontario Police Department violated the plaintiffs Fourth Amendment rights, and that Arch Wireless had violated the Stored Communications Act (SCA), when it had provided the Ontario Police Department (OPD) with copies of text messages sent by the plaintiffs. In October of 2001, Arch Wireless had contracted with the OPD to provide wireless text-messaging services. As part of the OPD’s auditing of the bills, it requested that Arch Wireless send the OPD a copy of the text messages sent by the plaintiffs, some of which was "personal in nature and sexually explicit." Neither the City of Ontario, or the OPD, had an official policy directed to text-messaging by use of the pagers. The City of Ontario did have a general "Computer Usage, Internet, and E-mail Policy" (the "Policy") applicable to all employees.
There was an "unofficial" policy regarding the use of pagers by the OPD and City of Ontario. The unofficial policy stated that OPD had the right to monitor the text-messages, but that as long as the employee paid for the cost of extra messages over and above their alloted amount, the OPD would not audit their usage. The Ninth Circuit stated that the Fourth Amendment protects the right of the people from "unreasonable searches and seizures." The reasonableness of a search is determined by assessing the degree to which it intrudes on an individual’s privacy, and the degree to which it promotes a legitimate governmental interest. The Court said that just because the plaintiffs are government employees, they do not lose their Fourth Amendment rights.
In finding that users of text messaging services have a reasonable expectation of privacy on their service provider’s network, the Court analogized the privacy of text messaging to a person who enters a phone booth and closes the door, and to the opening of a sealed letter or package that is addressed to an individual without a proper warrant. The findings by the Ninth Circuit demand that all businesses audit for legal compliance, their Computer Usage, Internet, and E-mail policies, and follow that up with training.
To read the opinion by the Ninth Circuit, please click here: Quon v. Arch Wireless Operating Company, Inc., et. al