The Supreme Court today issued its decision in City of Ontario, California v. Quon.  In a unanimous decision, the Court held that the search of Quon’s text messages, sent or received on his department issued pager, was reasonable and did not violate Quon’s Fourth Amendment rights. 

As set forth in the opinion, the Court did

As highlighted by many news sources, including CNN.com and MSNBC.com, the United States Supreme Court listened to oral argument (pdf) today in the case of City of Ontario v. Quon today. This is the case involving a police officer who claimed his employer violated his privacy when it read the personal text messages (which happened

On January 29, 2009, I had the opportunity to attend a brief presentation sponsored by Minnesota CLE entitled, “Corporate Data Privacy & Security: 10 Legal Practice Tips,” given by Brad Bolin, Senior Corporate Counsel for Best Buy, Inc. a Fortune 500 electronics retailer headquartered in Richfield, Minnesota. Bolin is a specialist in information security and privacy law. I was curious to hear what data privacy issues were on the mind of someone who monitors these issues for a living on behalf of a large corporation, especially a company that sells some of the very devices that make data privacy more challenging and which is known for its “results oriented” work environment. Many of the issues relate to topics discussed on this blog. The views expressed were strictly those of Bolin, not Best Buy. Here were his observations:

1. Work/Life Balance.  Electronic connections are collapsing the distinctions between work and personal life. Employees expect to be connected 24 -7. Bolin quoted Best Buy CEO Brian Dunn as noting, “Technology is … a constant backdrop in people’s lives, at home, at work, on the road and literally in the palms of their hands. We call it the ‘connected world’ and, as exciting as it is, it’s also increasingly complex, and difficult to keep pace with.”

12259312. Smart Phones Part 1.  Smart phones are becoming common and are a great example of how the “limited personal use” exception is swallowing the rule. He cited a survey showing that 20% of companies allow their employees to use personal devices for work, and the number is surely growing. Bolin discussed how under the old corporate model, a company that pays for an employee’s smart phone ought to take it back from the employee upon his or her departure, erase the contents and either recycle or reuse the device to prevent the disclosure of confidential corporate information. But what about the employee’s personal photographs, “apps”, movies, contacts and downloaded songs? What if the employee paid for the device but the company reimburses the cost? Securing employee-owned smart phones is not the same as securing corporate-owned devices, he emphasized.

3. Smart Phones Part 2.  Bolin said that, whatever rules you choose, a departing employee should be able to take his or her personal data, while IT should be able to ensure that any corporate information has been safely removed. The process should be simple and transparent to all. Adopt simple rules that make corporate data on an employee’s smart phone easier to identify and control. For example, distinguish between media files on the one hand, and xls doc, ppt, and pdf documents on the other. Have a transparent dialog with employees about the trade-offs that exist cost when placing personal phones on the corporate network. For example, an employee might be required to archive SMS text messages on his phone for e-discovery purposes.

4. Texting Issues.  While e-mail typically is stored on a common server, text messages usually are stored by cell phone companies or directly on phones, and often the employer does not directly pay for their storage. Employers must have either a warrant or the employee’s permission to see cell phone text messages that are not stored by the employer or by someone the employer pays for storage, Bolin said, citing Quon v. Arch Wireless, et al. 529 F.3d 892 (9th Cir. 2008),  The case is now under review by the United States Supreme Court.

5. TMI = Too much information.  An embedded Global Positioning System (GPS) feature is great for supporting and measuring effectiveness of a mobile sales force, but it raises the danger of collecting information about employees regarding the personal part of their life.

Continue Reading Best Buy Counsel Speaks on Data Privacy

The U.S. Supreme Court’s recent grant of certiorari in City of Ontario, Ontario Police Department, and Lloyd Scharf v. Jeff Quon, et al. highlights the effects new technologies continue to have on workplace privacy issues. One issue the Court will consider is whether a California police department violated the privacy of one of its officers when it read the personal text messages on his department issued pager. The U.S. Court of Appeals for the Ninth Court sided with the police officer when it ruled that users of text messaging services “have a reasonable expectation of privacy” regarding messages stored on the service provider’s network.

The underlying suit was filed by police Sgt. Jeff Quon, his wife, his girlfriend, and another police sergeant after one of Quon’s superiors audited his messages and found that many of them were sexually explicit and personal in nature.   Among the defendants were the City of Ontario, the Ontario Police Department, and Arch Wireless Operating. Co. Inc. Plaintiffs sought damages for alleged violation of their privacy rights.

While this case involves a public sector entity, its outcome is likely to affect electronic communications policies and practices across the country, whether by public or privacy employers.  

Continue Reading Texting & Sexting – Supreme Court to Consider Employees’ Expectation of Privacy in Text Messages