Web & communication software

Supreme Court Sides with Employers in Narrow Ruling

Six months after agreeing to consider a case regarding employee privacy rights in the workplace, the United States Supreme Court has ruled. Unfortunately for the Ontario police officers involved in the controversial case, and former Detroit mayor Kwame Kilpatrick, the Supreme Court found that employers have a right to employ reasonable monitoring efforts on state-issued devices.

The Supreme Court decision is restricted to government employers, but still has private-sector implications.
The Supreme Court reviewed the case through a strict lens--considering only whether or not the actual search of the text messages was reasonable, without regard for whether or not the police office had a reasonable expectation of privacy. The ruling explains, "A broad holding concerning employees' privacy expectations vis-à-vis employer-provided technological equipment might have implications for future cases that cannot be predicted. It is preferable to dispose of this case on narrower grounds."

In the Supreme Court decision, Justice Anton Scalia notes "that government searches to retrieve work-related materials or to investigate violations of workplace rules--searches of the sort that are regarded as reasonable and normal in the private-employer context--do not violate the Fourth Amendment."

In general, the courts have sided with business in ruling that employers have a right to monitor any and all messages and data on company-owned devices or traversing company-owned network resources. And, in fact, the Ontario Police Department at the heart of this case has an acceptable use policy for computer and network assets that users must agree to which establishes that right clearly.

The confusion in this case stemmed from two factors. First--that the text messages in question were on a third-party pager system and did not go through the government-owned network, and second--that the users were given verbal confirmation that it was acceptable to also use the pagers for reasonable personal use as long as the user covered any additional costs associated.

Privacy rights in the workplace are a sketchy issue. In the case of the Ontario Police Department, or government agencies and departments in general, though, the Supreme Court states that--in spite of any Fourth Amendment considerations--monitoring and reviewing message content may still be justified, or even required, in some scenarios including "performance evaluations, litigation concerning the lawfulness of police actions, and perhaps compliance with state open records laws."

In effect, the Supreme Court decision accepts the right to privacy of the user as a base assumption, but finds that even with an expectation of privacy there are still legitimate, work-related rationales for auditing, archiving, or reviewing employee communications and the expectation of privacy is not equivalent to an absolute right to privacy.

Aside from ruling narrowly on the reasonableness of the search and sidestepping the privacy rights aspects of the case, the Supreme Court ruling is also strictly confined to government agencies and employees. The decision does not directly impact private sector companies or employees.

It still has implications, though, that private sector companies and employees should pay attention to. Eventually a similar case specific to employee privacy rights in a private company will come before the court, and it is reasonable to expect that this decision will come into play as a precedent in that decision.

The challenge for employers, employees, and the courts is to find a balance between allowing for reasonable personal use of company technology assets while preserving some sense of Fourth Amendment privacy rights while also complying with Federal, State, and industry compliance mandates that require the monitoring and archiving of communications.

You can follow Tony on his Facebook page , or contact him by email at tony_bradley@pcworld.com . He also tweets as @Tony_BradleyPCW .

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