MCLE Blog

Since I have a science background, the intersection of law and technology has really fascinated me over the last few years (I attended UCSD and studied cellular and molecular biology as an undergraduate). We all knew that the technology was coming and that it was going to revolutionize our lives, we just didn’t know how it was going to affect us. Aside from people now building farms on Facebook and kids being unable to put the phone down – there are many changes in society that have resonated into the law. While many attorneys may be slow to accept and to adjust to these new technological changes in society they can no longer be ignored and our courts are crafting new precedents every day.

Of late, one crucial question that has yet to be fully resolved centers on cell phones, text messaging, an employee’s right to privacy, and the employer’s right to monitor. A reader posed this question on the Attorney Credit’s LinkedIn Discussion post on Friday after he read an earlier blog post on the same subject. The question posed:

Is it a violation of privacy for an employer to read your personal texts?

My answer – like many legal answers “it depends.”

This has turned out to be an extremely complicated question and the answer depends on many specific factors and what part of the country you are located in. There has been a split amongst the courts in this country and we are currently awaiting guidance on the matter from the SCOTUS.

A few weeks ago the Supreme Court heard oral arguments in City of Ontario, Calif. v. Quon, a case that will clear up some of the confusion. However, its application may be practically limited because of its specific set of facts. At the appellate lever, the Ninth Circuit had held that the city violated Quon’s privacy rights when it reviewed transcripts of the texts.

In Quon, the general issue is whether an employee has a reasonable expectation of privacy in their cell phone text messages. It is a topic I blogged about back in December, and although it does seem like a crucial case on the subject, the holding may be more limited in practice. First, a public – not private – employer was involved in the case. Second, the phone was owned by the police department, but Quon paid for overages when he exceeded the text message limit set by the police and he was off-duty at the time the text messages were sent. Lastly, Quon’s police sergeant subpoenaed Arch Wireless for the records – something a private employer would have a tough time accomplishing. At the appellate level, the Ninth Circuit had held that the city violated Quon’s privacy rights when it reviewed transcripts of the texts.

This has been a hot button topic in the last few months and a quick search will reveal that many blogs have covered the topic. As reported by Law.com, it is not clear which direction the Supreme Court will go on this issue and there are many facts that must be dealt with. What is an employee’s “reasonable expectation of privacy” in their electronic communications? Are texts the same as email or a phone call? Can an employer completely disclaim an employee’s right to privacy in all digital communications by inserting such language in the AUP (Acceptable Use Policy)?

Of course, I enjoy blogging about this topic and it highlights the tricky issues we all face in our new electronic world. One of the main arguments that Quon’s lawyer presented was that sending a text message is like sending a letter. When you send a letter, the government is not supposed to seize and review it at the Post Office. However, is communicating by text the same as sending a letter through the U.S. mail or an email through an ISP?[1]

These issues even invoke the Constitution and Deputy Solicitor General Neal Katyal cautioned the Court about generalizing Fourth Amendment rules in this area. As he aptly point out the technologies are “rapidly in flux” and expectations of privacy have not been as clearly formed as in traditional Fourth Amendment areas, such as homeowners putting trash to their curbs. However, I find this rationale to be flawed for one main reason – the law will never catch up to technology. Technology moves way too fast for the law to ever keep up at the same pace.

One last issue to ponder … is the Supreme Court even equipped to properly decide these issues? During oral arguments, Chief Justice John Roberts asked what the difference was between an email and a pager. And this body will continue to craft the law in this area for years to come …. let’s hope they have some tech-minded clerks!

[1] This is a very unsettled area of law. In Rehberg v Paulk, the 11th Circuit recently held that a party has no privacy rights to email because email is “information you have turned over to a third party.”