Question of the Week
Is it true that the Ninth Circuit Court of Appeals recently ruled that an employer cannot access text messages sent and received by employees on employer-provided electronic devices?
In short, yes. The Ninth Circuit Court of Appeals held last week in Quon v. Arch Wireless Operating Company, that under the Stored Communications Act, 18 U.S.C. 2701 et. seq., an electronic communication service provider, such as Arch Wireless, cannot divulge electronic communications, i.e. text messages, sent or received by an employee using an employer’s electronic device to anyone other than the sender or intended recipient of the communication without the employee’s consent. This can mean, as it did in Quon, that the electronic communication service provider cannot divulge to the employer the employee’s electronic communication. In other words, if an employee uses an employer-provided electronic device to send a text message to someone other than the employer, the employer cannot obtain access to the text message from the service provider without the consent of the employee.
In light of the Court’s holding, what can an employer do if it wants to be able to monitor or access text or other electronic messages sent or received by employees using an employer’s electronic devices? Arguably, an employer can condition an employee’s use of an electronic device on the employee consenting to the employer obtaining access from the service provider to all electronic messages sent or received by the employee using the employer’s device. Such a conditional use policy should satisfy the requirement of employee consent for an employer to access an electronic communication sent or received by an employee.
For more information, please contact Brian McPherson.
