How Much Electronic Privacy Does an Employee Have?

For desk jockeys everywhere, it has become as routine as a tour of the office-supply closet: the consent form attesting that you understand and accept that any e-mails you write, Internet sites you visit or business you conduct on your employer's computer network are subject to inspection. That X-rated message from your boyfriend? You keep it on Gmail. Your thinly veiled Web diary of soul-crushing corporate tedium? It's crafted on the MacBook your mom bought you last year. Simple enough. But commonplace communication—texting, instant messaging, Twittering, telekinesis (prove me wrong)—is evolving faster than corporate policy, and the best practices of the e-mail age are becoming antiquated. Computer-privacy advocates celebrated this month after the U.S. Ninth Circuit Court of Appeals issued a potentially precedent-setting ruling that makes it more difficult for employers to sniff around in workers' electronic communications. Jennifer Granick, civil-liberties director of the Electronic Frontier Foundation, a digital-rights advocacy group, called the ruling "a great decision in support of communication privacy."

At the very least, the decision sheds new light on the complicated privacy issues companies and employees are facing as technology quickly evolves. (Consider the recent headlines: managers at the investment-banking firm Bear Stearns were indicted based on incriminating e-mail messages they allegedly sent that caused investors to lose an estimated $1.6 billion.) In the Ninth Circuit case, the issue wasn't e-mail but text messaging. Ontario, Calif., Police Sgt. Jeff Quon sued the department and Arch Wireless, which provided service to his work-issued pager, after learning his superiors had read personal text messages he'd sent from the device, including some racy missives to his wife. The police department said it did so after Quon, and others, repeatedly exceeded their monthly text limit of 25,000 characters. Quon in the past had personally paid for any overage charges, believing that if he did so he could send personal correspondence and his messages would not be audited.

Key among the many issues in the case was whether Arch Wireless violated Quon's rights by handing over the text messages to his superiors. Typically, employers have the right to access communications sent through their servers, as is usually the case with e-mail. In contrast, a user must grant permission for anyone to access electronic communications like text messages that typically are stored only temporarily, for backup purposes, by so-called third-party messaging services. The panel of judges from the Ninth Circuit, a liberal court whose jurisdiction includes California, ruled that Quon's texts—and ostensibly millions of other messages from millions of other users—are protected from employers' prying eyes.

Paul Brabant, a Washington D.C.-based specialist in electronic-communication protocol for Epiq Systems, says many companies are working off guidelines set almost a decade ago, when e-mail became a common way to communicate. Back then, texting was hardly a consideration, but now it is, with wireless subscriptions growing 352 percent in the past 10 years, according to CITA, a wireless-communications lobbying group. Brabant says that "as the lines are being blurred" with people working at the office, at home and any number of places in between, "this decision is a wake-up call." That's especially true for users who underestimate their "eDNA"—the electronic "bread crumbs," as Brabent puts it, that create a permanent record of their communications.

The degree to which companies monitor and store these bread crumbs varies greatly. Some dig into employees' e-mails regularly. Others have programs that block messages containing explicit language. And some look at e-mails only when an issue arises. It doesn't take much for a system administrator, or even the lowliest IT assistant who helps you restart your computer, to gain access to pretty much anything on your work-issued computer. But while my (fabulous) employer, for example, has the authority to look at e-mails sent on my NEWSWEEK account, without my permission, it doesn't have the legal right to access e-mails sent through my personal Gmail or AOL accounts, even though it could probably access those messages somewhere on my work computer (memo to my boss: you'd be bored). Going forward, employers might require workers to sign over permission to access all their text messages before they get a company-issued phone or pager.

It's unclear whether Arch Wireless and the police department will appeal the Quon case; a spokesman for the company would not comment on the matter but said generally, "There are more questions than answers at this point." Some industry watchers say that they expect the core ruling to hold up if it reaches the Supreme Court on appeal. "The Quon decision could mark a slow shift toward increased privacy protections in the U.S.," Brabent says. Meantime, if you live in the Ninth Circuit's jurisdiction—that means you, Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Guam and the Northern Mariana Islands—don't be too afraid to send that flirty text. Though you might want to err on the side of modesty. Or at least learn a few double entendres.

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