"Textual Harassment" Case Raises Privacy Issues
In a previous post, we cautioned that employees should never use company-owned computer equipment for any personal communication, specifically e-mail messages, that they wish to remain confidential.
Now it’s going a step further.
According to a recent Law.com post, the same caution should apply to texting. The post, discusses the diffuculties of investigating cases of "textual harassment." That there are such cases should give us pause. But, Law.com goes on to state that the federal Stored Communications Act generally makes it unlawful for employers to intentionally access stored electronic communications such as e-mails and text messages without an employee's authorization or in excess of authorization. HOWEVER, if the employer is the provider of the communications service (Blackberry, cell phone, etc.) used to store the electronic communications, or the employee agrees, the employer may access such communications.
Employees need to remember that messages are not just stored in computers or handhelds, but may be in a server somewhere, maybe in a computing “cloud”. So we're going to reiterate our earlier warning: employees can't assume they have privacy rights when using an employer's facilities for email, and now, texting.
According to the post, employers need to be wary as well. The Electronic Communications Protection Act prohibits an employer from intercepting in-transit electronic communications unless the employee consents; the employer is a party to the communication; or the employer provides the electronic communications service and intercepting the messages is necessary to protect the employer's property rights.
We would add, as we have said before with resect to e-mail, make your electronic communications policy clear so that there is no ambuguity about employee's reasonable expectations of privacy (or, more importantly, the lack thereof).
These points simplify a complex area where law and technology converge but they provide a good starting point for coping with future developments in both.
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