Privacy

Roundtable discussion: Company-issued phones and liabililty

When a police officer is reprimanded for using a department-issued phone for sexting. This is a legal argument that is sure to raise its head much more. Read what our roundtable of experts has to say.

A police sergeant in CA was text messaging on a two-way pager issued by the department. The department had a policy allowing supervisors to monitor email message and Internet usage but the policy didn't say anything about texting. The officer, Jeff Quon, sent text messages that were found to be sexual in nature. Quon argues that he shouldn't face disciplinary action because the department had an informal policy that allowed employees to use pagers for personal matters as long as they paid the overage fees.

A district court ruled that Quon couldn't expect to maintain the privacy of the messages on his department pager. This was overturned by the US Circuit Court of Appeals, holding that the department's review of the message content was "unreasonable in scope."

I asked the TechRepublic roundtable this question: If you were asked to "decide" this case, how would you do it?

Justin James, Programming and Development blog:

The employee has to expect no privacy on company equipment as a matter of common sense. I would imagine that the employer does not need an explicit policy stating that they have this right, since they have it anyway. The policy is more of an official "heads up" to folks to not be surprised by it and to warn people not to abuse the equipment. Regardless of whether or not he was allowed informally to use the pager for personal business if he paid the overage, that does not mean that the employer lost the ability or right to review that usage. After all, how else would they know if he is faithfully paying for the overage or not? If he was using this equipment to commit a crime as "personal business" would this even be in question? Probably not.

Deb Shinder, TechRepublic contributor:

Based on most legal precedent, I would decide in favor of the district court's decision. Generally when an employer is paying for the service, it belongs to the employer and the employee doesn't have a reasonable expectation of privacy in it (with some exceptions). By using the department's equipment and service, the employee puts the employer in a position of liability. Sexual messages sent on departmental equipment could lead to charges against the whole department of sexual harassment. Employees could text content that would indicate bias, racial profiling, etc. Police agencies are very vulnerable to these types of suits and they can cost the agency millions so I think it's reasonable for them to monitor the content.  However, the department needs to revise its policies to make it clear that the monitoring applies to texting and all other forms of communication on the company equipment so that employees can't claim not to have known.

Patrick Gray, It Executive Consultant and TechRepublic contributor

There's a legal aspect and a common-sense aspect to this case. I don't have the legal chops to comment on the legal aspect, but if I were to judge this case I would deem the officer guilty and sentence him to a slap upside the head.

In 2010 if you haven't realized that any communications device issued by your employer (a police department no less) can be monitored, then you are just plain foolish, in league with teens posting video of illegal acts on Facebook, then being surprised the police can also type "facebook.com" into their web browsers. If you would then use one of these devices to send sexually explicit material you are just plain stupid, and frankly should have neither a pager nor a sidearm!

Do you guys have anything to add?

About

Toni Bowers is Managing Editor of TechRepublic and is the award-winning blogger of the Career Management blog. She has edited newsletters, books, and web sites pertaining to software, IT career, and IT management issues.

13 comments
Doug_Dame
Doug_Dame

Interesting how easy it is to miss the big point here. Amateur opinions aside ... mine included ... the US Court of Appeals has ruled that DESPITE the fact that the equipment was provided by the employer (a public police dept.), the employee in this case DOES have some expectation of privacy. It is not clear from the short description whether that expectation of privacy exists because the employee is paying out of pocket for additional service, or because the existing dept'l policies did not explicitly cover texting. If you are an employer, or a techie working for an employer who provides communication devices for its employees, in the wake of this decision you cannot just assume that the employer has the right of unlimited access to all of its employees communications. You may be at legal jeopardy.

mongojim
mongojim

I have an employer issued Blackberry, and I fully understand that if I use it for personal business as is allowed by our employers "agreement to allow personal calls" it is neither agreed or implied that I can make any type of personal call, and in fact I personally would consider that this cas has crossed the line!

reggaethecat
reggaethecat

I'd better work out how to delete the last 6 months of texts between me and my girlfriend off my iPhone then! In my case I own the phone but it's a company SIM, they pay the bill but we're allowed to use the phones for our own personal use, within reason (from a cost perspective). I expect my texts to stay just that, personal. As it is my own phone I don't see there is any justification for my employer to be able to ask to see the contents of my phone, nor can there be sexual harassment of anyone else as no other staff member will be using it. I appreciate that the public sector tend to have stricter rules, also over in the US there appears to be no concept of being fair to your employees who can be hired and fired at will. Lucky for me I work in a civilised country, in a private company and I get on with my boss (for now)!

The 'G-Man.'
The 'G-Man.'

They and what is on them / used for belong to the company, end off.

hard knocks
hard knocks

Ever since we paid the lady who dropped hot coffee in her lap, we sue somebody for our mistakes.

Osiyo53
Osiyo53

I quite agree with you that there are a lot of amateur opinions flying around about this sort of thing. And I most definitely am no expert in such matters. However, if we're talking about the same case, the one involving the SWAT team officer in Ontario CA. Then note that evidently the Supreme Court over ruled the Appeals Court and decided against that officer's argument that he did indeed have some expectation of privacy as concerns the contents of his text messages sent and received using the police department equipment. http://www.insidesocal.com/sb/iecourts/2010/06/supreme-court-oks-search-of-on.html Chuckle ... it was almost to be expected that the 9th US Circuit Court of Appeals (in San Francisco) have its opinion over ruled. Happens quite frequently and with great regularity. If you do not know: The 9th Circuit Court (Federal) is the largest in the country. It is considered the most liberal Federal court in the country. And it is the most frequently reversed Federal court in the country. Heck, they don't only get their decisions reversed by the Supreme Court routinely. They're known to reverse themselves with some regularity. LOL ... most any time I hear or read about the 9th making a decision on this or that, I just dismiss it and make mental note to check back later to find out what the real, final decision is going to be. The Supreme Court decision was unanimous BTW. Meaning that neither the liberal nor the conservative judges thought the officer had a reasonable expectation that his text messages were immune from scrutiny under all circumstances. And in this case they believed the police department was acting reasonably. I like what Judge Kennedy (Supreme Court) had to say about it. His suggestion was that employees who want to avoid similar embarrassing revelation of messages they would rather keep private ... should buy and pay for their own cell phones and cell service (and other such devices).

Osiyo53
Osiyo53

"also over in the US there appears to be no concept of being fair to your employees who can be hired and fired at will" Not really true, of course. What precisely constitutes being "fair" or "unfair", is of course subject to interpretation and opinion. As I understand it, and I've done some reading on the subject, not even all the members of the EU agree on all the particulars with regards to what is "fair" or "unfair". Pretty much the same here. There can be quite a divergence of opinion, and of actual law and regulation, from State to State. Of course, there is the other side of the coin. And that is that when one provides more employee protection and benefits, it generally has a result where a prospective employer is more hesitant to hire in the first place. They become more cautious, do more weeding out amongst new applicants for more reasons, delay filling open positions longer, etc. Net result can be that those who find themselves unemployed, can find that they're unemployed for a longer duration than might be the case elsewhere. Numerous studies I've seen tend to agree that this is ONE of the reasons why within the EU, many of its members experience not only a relatively high unemployment rate but also a much longer duration of unemployment for those who lose a job than is the case elsewhere. Note, its just one reason. Maybe not even the major one. There is a lot of debate amongst those knowledgeable about the subject (I'm not) as to all the particulars. Another side effect to the difficulty of dismissing workers is that some companies homed where this is particularly true have taken to starting new endeavors (new offices, new product lines, or whatever) elsewhere. Some other country, or state, or province, or whatever ... where, if things don't pan out well for them they can more easily cut back on the number of workers (or close the doors if necessary). OR expand more quickly, respond to market changes more quickly, etc without the heavy administrative (and financial) burden of jumping through all the hoops to adjust employee headcount that they might have to do back home. I'm NOT slamming your system. I'm just pointing out that there are pros and cons on both sides of the issue. There is much I admire about Britain, and the EU. And much I do not. I'd say the same about the U.S., in general. And more specifically about various States within the U.S., with which I have personal experience and knowledge. Likewise, as concerns Australia, Japan, and a number of other countries where I've visited (for a significant time), worked, etc. I am, of course, prejudiced. Have lived in Minnesota for the past 20 years (its not where I was born), and think its rules and ways are quite superior to your "civilized country". And superior to California, Michigan, New York, etc, etc, etc. ROFLMAO ... I'll quite understand if others do not agree with me. In my lifetime I have worked and lived in quite a number of the States of the U.S., and in a fair number of other countries. It is my general observation that most folks think that where they live is generally superior to elsewhere in many ways. Just ask em, they're usually willing to tell you as much or more than you wanted to hear.

The 'G-Man.'
The 'G-Man.'

They will all be looking at the saucy MM messages as well.

abc123a
abc123a

Your SMS messages are out in the wild. There is really no way to delete them permanently. Stop using your phone for personal use. If you want to continue to use the same iphone for work and personal use consider one of the many applications like Line2 which allow you to have 2 phone numbers on one phone.

abc123a
abc123a

If you use company provided equipment for personal use assume that the company can and will access your personal data and there is absolutely no guarantee that they will keep it private. Best to keep separate phones, pagers and computers for personal use.

rhuston
rhuston

Like PC use at work, there can never be a reasonable expectation of privacy with pagers, cell phones, radios, tablets, what have you. Doing dicey personal business on company equipment is industrial-strength idiocy. A fellow employee at a company I used to work for used his desktop to download numerous pirated DVDs. Finally one of the Publishers called our boss on the carpet for it. The worker was fired as soon as this came to light, and rightfully so. The boss had to do some fancy footwork with the Publisher to avoid prosecution. Traffic to and from company-owned equipment is absolutely company business.

Doug_Dame
Doug_Dame

The original post didn't say "9th US Circuit Court of Appeals ruled thusly AND NOW THE SUPREME COURT IS CONSIDERING A FURTHER APPEAL." (Or just has.) I incorrectly believed the Circuit Court of Appeals ruling was the end of the court action in the case. Thanks for the clarification.

jonniebgood
jonniebgood

I find it to be pretty much the the apex if idiocy when I buy a product, and the first instruction on the box is 'remove outer packaging.' No kidding, I laugh quietly to myself. I mean, they think that someone actually has to be told this? I dunno- maybe after being consonantly bombarded with tales of woe over the incomprehensively stupid people things that some people do that fly in the face of the obvious, just maybe these manufacturers are right. They really DO need to spell out the obvious. Because your employer doesn't issue you with a thirty page memo on the etiquette of the use of company property doesn't suggest that you should be clueless about the ramifications of mis-use, or what mis-use entails. Sigh...

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