‘Sexting’ and social media cases turn heads
By Lydell C. Bridgeford – Employee Benefits News – April 1, 2010 Issue

We live in a high-tech world that increasingly blurs the lines between one’s professional and personal lives.

Despite the uncertainty of what’s fair game and what’s off limits in our digital culture, legal commentators say employers must stay up-to-date on the constantly moving parts pertaining to workplace privacy.

On April 19th, the Supreme Court will hear oral arguments in a case on whether workers have a “reasonable expectation of privacy” when sending personal text messages on company-owned mobile devices.

The case, City of Ontario v. Quon, involves several SWAT team members who sent sexually explicit text messages on government-issued pagers. The California lawsuit arrives on the Supreme Court’s door courtesy of the 9th U.S. Circuit Court of Appeals.

The Supreme Court will determine, in part, whether the California officers had a reasonable expectation of privacy when using the pagers, and if the police department had an official no-privacy policy that was undermined by a lieutenant who told the officers that they could use the pagers for personal matters.

The court’s upcoming decision, whether it’s in favor of the police department or the SWAT team members, will probably raise new questions about privacy rights in the workplace, especially for public employers.

Case notes

In June 2008, the appeals court ruled that the Ontario police department violated SWAT team members’ Fourth Amendment rights when a police chief read the personal content of their text messages without their consent.

The team’s supervisor wanted to see if SWAT team member John Quon and three other members’ excessive use of their pagers resulted from personal or work-related activities. The chief asked the pager service provider to hand over transcripts of archived messages sent to and from the SWAT team members. In reviewing the transcripts, he noticed that some personal text messages were sexual in nature.

According the 9th Circuit ruling, the police department had a written statement asserting, in part, that it would monitor text messages. Therefore, the city’s attorneys argued the SWAT team members had no reasonable expectation of privacy. The SWAT team members maintain, however, that their supervisor assured their messages would not be reviewed as long as they paid any over-the-limit fees for texting.

Ultimately, the appeals court held that “the search of the [officers’] text message violated their Fourth Amendment and California constitutional privacy rights because they had a reasonable expectation of privacy in the context of text messages.

Yet, [w]e do not endorse a monolithic view of text message users’ reasonable expectation of privacy, as this is necessarily a context-sensitive inquiry,” the court added. Under the Stored Communications Act, electronic communication providers cannot reveal the contents of text messages without authorization from the end user, even if the employer is paying for the services.

The City of Ontario and USA Mobility Wireless, which acquired the pager-service company that released the text messages to the police department, appealed the 9th Circuit decision to the Supreme Court.

Privacy implications for public employers

“The Quon case is worth paying attention to because the idea that an employer can issue a policy explaining to workers that it reserves the right to review e-mails and text messages can be potentially undermined by a supervisor stating the contrary,” explains Christine Lyon, a partner in the Palo Alto, Calif., office of Morrison and Foerster, where her practice concentrates on privacy and employment law.

In addition, Quon and his fellow officers claimed that the police department also violated their privacy rights under the California constitution.

In the state, residents can sue an employer for invasion of privacy. Consequently, the appeals court not only analyzed the case by examining the Fourth Amendment, but also privacy rights claims under the state constitution. As such, the Quon ruling widens the window for California residents to prevail in privacy invasion lawsuits against private-sector employers.

However, the legal issues before the Supreme Court will mainly focus on the fact that the SWAT team members are public employees employed by a government entity responsible for public safety. Police authorities believed that their mission to protect the public’s safety outweighs the SWAT team members’ privacy interests.

“It’s possible that the Supreme Court may side with the police department because of this argument,” explains Lyon. Some employers will argue that they have a compelling reason, such as a safety concern or a court order requesting documents, to monitor and review workers’ e-mails and text messages created on company-owned computers and mobile devices.

On the other hand, “if the Supreme Court rules in favor of the SWAT team members, then the take-home message to employers would be to make sure your managers and supervisors fully understand and communicate to workers that the company reserves the right to monitor e-mails and text messages,” Lyon explains.

New Jersey-based attorney Joseph Paranac Jr. explains that the Quon case is a state action, which “means it is covered under Fourth Amendment protections against unreasonable searches and seizures. Public employees have a greater expectation of privacy than their private-sector counterparts.”

Still, the lawsuit points to the “rising prominence of cyber-liability in our Twittering, Facebooking, iPhone-enabled age,” adds Paranac, who is a member in the labor and employment practice group at LeClairRyan.

Paranac considers the Quon case the perfect example as to why employers should create straightforward policies on how their workers use company-owned computers, pagers and other electronic devices.

“For example, the case of Stengart v. Loving Care Agency, which is headed for the New Jersey Supreme Court, centered on whether e-mails sent by an employee to her lawyer using a company-owned computer are protected by the attorney-client privilege and therefore off-limits from monitoring,” Paranac explains. “In that case, the plaintiff used her password-protected Yahoo account, not the company’s e-mail system, to communicate with her attorney about a planned lawsuit against the company.”

Paranac believes that the nation’s high court “might well carve out similar exceptions for other sensitive communications, such as doctor-patient e-mails sent with employer-owned equipment. This puts employers in a quandary,” he explains.

The best that employers can do is to create and “enforce clear and consistent polices, because we are just at the beginning of a process in which the courts will likely shape the limits of those policies,” Paranac adds. “Until that process is complete, employers and employees alike will have to operate within a kind of cyber-liability grey area. The wheels of justice turn slowly, and both courts and lawmakers are struggling to catch up to technology.”

The MySpace case

Another case that has raised eyebrows is Pietrylo v. Hillstone Restaurant Group. In September 2009, a federal district court in New Jersey upheld a jury verdict, concluding that the employer, the Hillstone Restaurant Group, violated the Stored Communications Act and the state’s electronic surveillance statue.

A manager at the restaurant who was not authorized to use a MySpace page created by two employees reviewed the contents of the site, which was set up, in part, as an outlet for the two workers to express grievances about the employer.

During the trial, one employee testified that she felt pressure to hand over her password to the manager. After reviewing the content on the MySpace page, the manager fired the two workers who created the MySpace page, citing that the content on the site hampered employee morale and went against the company’s core values.

“It’s a noteworthy case, because it’s one of few published opinions on social media and the workplace,” Lyon says.

The Pietrylo case definitely highlights the importance of distinguishing between information that an employee puts out on the Internet, for example a blog, for the whole world to see versus content from a limited-access Web site.

Advice for employers

Employment experts say an employer can reduce the expectation of privacy among its workforce by having a good written policy that explains the company reverses the right to monitor e-mails, text messages and Internet usage on computers, smartphones and BlackBerries that it owns or pays for.

Still, Paranac and other experts recommend employers create a separate policy on social media that details how workers are representatives of the company and that they should not leak confidential information or discuss internal matters on social media sites.

Furthermore, the policy should explain to workers that activities conducted on social networking sites should be limited to nonworking hours, unless the use is for legitimate business purposes.

Additionally, employees’ comments should not be discriminatory or harassing in nature. This includes making disparaging or inflammatory remarks about the employer and its business.

In essence, “you are not to bad mouth the company on social media sites because it can have an immediate negative effect on the company,” adds Paranac. “Every employer is benefited by promulgating a policy that makes clear to employees what is kosher and what is not,” he adds.