Bosses can't read employees' messages, court says: in a victory for workplace privacy, an appeals court ruling has made it more difficult for employers to snoop in employees' electronic messages.

• Author: Swartz, Nikki
• Position: ON THE EDGE: The Use & Misuse of Information

According to the 2007 Electronic Monitoring and Surveillance Survey from the American Management Association and the ePolicy Institute, 43 percent of organizations surveyed said they monitor employees' e-mail; 40 percent said they employ an individual responsible for reading and reviewing employees' e-mail.

On June 18, the Ninth Circuit Court of Appeals in San Francisco handed down a potentially precedent-setting decision regarding employees' privacy expectations in the workplace. In Quon v. Arch Wireless Operating Co. Inc., the court ruled that employers cannot read employees' text messages without the employee's knowledge and consent--even if those messages were sent or received using a company-owned electronic device. In addition, the court determined that absent a search warrant, service providers cannot turn over the contents of employees' messages to employers--even if an employer pays for the messaging service.

The ruling directly affects those in the Ninth Circuit--Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Guam, and the Northern Mariana Islands--where it is now law, but it could potentially influence the privacy policies of public and, to a lesser extent, private organizations throughout the United States.

At the very least, the case highlights the archaic nature of current laws governing workplace privacy and electronic communications and the complicated issues that arise with new technology. Even if Quon is ultimately overturned, the case is important because the issues it raised aren't going away any time soon.

Police, Pagers, and Prying Eyes

The Ontario (California) Police Department provided its officers with pagers under a text messaging plan from Arch Wireless that limited the number of characters each officer could send and receive. The department's written policy banned the personal use of its networks, computers, and communications devices. It stated that the city reserved the right to monitor and log all network activity, including e-mail and Internet use, with or without notice. The policy further stated that users should have no expectation of privacy.

According to court documents, the department later announced that its policies also would apply to the use of its two-way pagers. However, a supervisor told Police Sergeant Jeff Quon and other officers that he would not audit their text messages if they reimbursed the department when they exceeded their 25,000-character limit. Quon paid for overages each time they...