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The media got a little carried away with its praise of a recent federal court ruling that assigns certain privacy rights to text messages. The coverage, by and large, suggests that we’re on the verge of a revolution in workplace wireless communications that will see workers rise up and seize control of their electronic content. Sounds like fun. But it’s not gonna happen.
Why not? Because the ruling in Quon v. Arch Wireless Operating Co. is significant for some employees but less so for others. As for private employers, it might bear no significance at all.
Generally speaking, the Quon ruling says that wireless text messages are to be protected from unreasonable search and seizure, the same way handwritten letters are protected when sent in sealed envelopes through the postal service.
For Jeff Quon, a police sergeant in the small Southern California city of Ontario, the ruling meant vindication in a lawsuit against his employer. Quon had sued the city, its wireless carrier Arch and others for invading his privacy during an internal police investigation aimed at finding out how much Quon had used a two-way, government-issue pager to send personal, rather than work-related, messages.
Despite the limited scope of the Quon ruling, some parts of the decision speak broadly about the private nature of text messages and could serve to guide the court’s reasoning in future cases. And that is what the media coverage so far has focused on.
A CNET blogger said the ruling means employees’ text messages are now safe from their bosses’ prying eyes. The Los Angeles Times put a similar interpretation in a story headline: Your boss shouldn’t read your text or e-mail messages without an OK, court says. And The New York Times went so far as to say that Jeff Quon deserves a hearty thanks for taking the issue to court.
But while Quon’s courtroom victory might lend comfort to people who value privacy, it won’t necessarily dissuade private employers from snooping through employees’ wireless messages, because the constitutional protection against unreasonable search and seizure is pretty much limited to the government. In other words, you can’t use it against your IT manager or your HR department unless you’re a public employee.
You can’t use the Quon ruling against wireless carriers in all cases, either. The court’s conclusion hinges on a determination that Arch Wireless — now known as USA Mobility — held customers’ text messages in “electronic storage” under the Stored Communications Act of 1986. As such, the company violated federal law by disclosing transcripts of Quon’s text messages to the Ontario police department without his consent. Had the company not stored text messages after they were retrieved by users, it seems there would have been no internal investigation and perhaps no lawsuit. (For a more detailed analysis of the SCA, see the Electronic Frontier Foundation’s discussion of the case.)
It’s also unclear how the Ontario police department’s vague and inconsistent practice of regulating text messaging affected the outcome in Quon. The city had informal rules about text messaging on pagers, but no written policy.
Orin Kerr, a contributor to the Volokh Conspiracy law blog, warns that this lack of clarity could lead to some confusion. Clearly it already has. Personally, I’d like to agree with the conventional wisdom, that the court intends to let employees turn their company-issued wireless devices into little free speech stumps inside the virtual public square. It’s not hard to find blogs and news articles that suggest the law is pointing this way. But at least one employment lawyer has a different take. Philip Gordon, who specializes in privacy and data protection for Littler Mendelson, writes on his firm’s privacy blog that employers can easily and lawfully circumvent the Quon ruling, by setting and upholding policies that tell employees their text messages will be searched. If that strategy doesn’t work, I suspect employers will eventually find another one that does.