Supreme Court Affirms Right of Employer to Review Employee's Text Messages
In a recent decision, the US Supreme Court affirmed the right of employers to review the text messages on employees' cell phones. In City of Ontario v. Quon, the government employer 
searched the employees' cell phone for text messages. The cell phone had been issued by the employer. The City believed the employee had exceeded the limit on cell phone messages. So, it got a private cell phone company to release the text messages. In reviewing the text messages, the employer found some of the text messages to violate additional company policies. Some messages had sexual content. The Ninth Circuit Court of Appeals had found this intrusion violated the Fourth Amendment, since the employer could have simply looked at the recipient's address to see if the messages violated policy.
The Supreme Court did not specifically address the isue regarding wherther the employee has a privacy interest in the text messages. But, it did assume the employee has a privacy interest for the purposes of resolving whether the employer's actions were lawful. In a close 5-4 decision, the Supreme Court found that the actions of the employer did comport with the Fourth Amendment. See report.
The US Supreme Court found that possibly exceeding the text message quota was sufficient reason for the intrusion into the text messages. And, the court found that looking at the entire message, instead of just the addressee, was appropriate under the circumstances. The court seemed to note with approval that the employer only looked at a sampling of the messages sent during work hours. The sexual nature of the messages did not help the employee's cause.
The Supreme Court mentioned that this is a growing area and it would not issue any broad rulings.
Courts have only just started wrestling with the limits of online freedom in the workplace. A recent decision from the New Jersey Supreme Court provides some guidance. In the case of Stengart v. Loving Care Agency, the former employee left her job. She also left behind her employer issued laptop. On that laptop, she had sent various emails to her lawyer from a private non-work related Yahoo account. The account was password protected. But, the employer's experts were able to retrieve the password and review the emails to the lawyer. 