You may have heard the news earlier this week that the Supreme Court has agreed to hear a case concerning an employee’s privacy rights in text messages sent on a work-provided pager.

This case involves the Ontario Police Department in Ontario, California, which provided the pagers to its officers.  The issue arose when the Department ordered transcripts of the text messages sent by Sgt. Jeff Quon.  Many of Sgt. Quon’s text messages turned out to be personal (and, in many cases, “sexually explicit”) in nature.  Sgt. Quon and some the individuals with whom he corresponded via text message sued, arguing that their Fourth Amendment rights had been violated. The Ninth Circuit Court of Appeals found that the employees had a “reasonable expectation of privacy” in the text messages sent using the pagers.

So the interesting technology question that arises is this: are text messages fundamentally different than emails such that an employer could legitimately monitor one (emails) and not the other (text messages)?

Jack Greiner of “Jack out of the Box” has an nice analysis of one of the key distinctions between texts and emails.  It’s about ownership of the technological medium:

“…text messages are different than e-mail messages. Unlike e-mail, text messages never pass through a corporate communications network; always are stored with a third party provider; and often are transmitted via personal cell phones. So it’s not exactly like the employer is monitoring its own equipment. And the employer’s right to monitor, under applicable federal statutes, is tied to the fact that it owns the equipment. So, the statute by its terms probably doesn’t apply to text messages.”

It will be interesting to see how the Supreme Court addresses this technological disctinction and what sort of implications this has for employers as they draft company policies regarding use of pagers and cell phones.

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