The Blurred Line between Personal and Work Use of Technology is Impacting Privacy Law
Technology use in the workplace is a double-edged sword. On the one hand, it allows for increased efficiency and flexibility because we can communicate with co-workers and clients instantly from wherever we are through numerous mediums from a single handheld. On the other hand, it has given us all a serious case of ADD. And more importantly, it has blurred the line between what’s personal and what’s work.
We use our Blackberries, iPhones, iPads, Droids, and HTC-2s to send an email to a client or boss on our companies’ systems one minute, and then use the same handheld to send a personal email to a friend, accountant, or lawyer on our personal email account the next minute. The same happens from desktops and laptops.
The privacy issue arises when that handheld, laptop, or desktop is provided by a company to one of its employees. Do the employees have a right to privacy in their communications when they send a personal email over the company’s email system? When they use a company’s computer to send an email from a personal account using the company’s Internet service? When they send text messages on employer- provided phones and handhelds? What is considered a reasonable personal use of company-provided devices in a world when employees are expected to answer emails from home and from handhelds and when they are expected to work 10 to 12 hour days?
These are just the sort of issues that are currently making their way through the state and federal court systems.
In a recent decision involving text messages sent on government-employer owned cell phones, the U.S. Supreme Court declined to make a broad ruling on the issue of “privacy expectations vis-à-vis employer-provided technological equipment” because of the
potential future impact such a ruling could have in an area where “rapid changes in the dynamics of communications and information transmission” are affecting both the technology itself as well as “what society accepts as proper behavior.”*
Because the legal analysis in privacy cases centers on a person’s “reasonable expectation of privacy,” what we accept as a societal norm affects what is considered “reasonable” from both an objective and subjective point of view.**
Despite the Supreme Court’s refusal to provide a broad ruling on this issue, it did not find that the City violated the employee’s privacy rights when it reviewed the content of his text messages. The factual grounds supporting this finding were that: there was a workplace policy which indicated that text messages could be reviewed; and there was a legitimate work-related purpose for the review (i.e., determining whether text message overage charges required the City to increase its phone plan).
The implications of this decision are huge – even without a broader ruling and despite the differing privacy analyses that apply to public vs. private employers – because it essentially says that so long as employers properly craft their workplace policies regarding technology use, they can significantly erode employees’ privacy rights. This is particularly troubling in an age when technology is trending toward the increased availability of a one-size-fits-all devices and when the distinctions between one’s personal and work life are being significantly blurred.
Meredith D. Williams is an employment lawyer in Los Angeles, California and a partner at Miller | Williams LLP, an employment litigation and counseling law firm, providing businesses of all sizes, as well as selected employees, experienced and cost-effective legal services in a wide range of employment-related litigation and counseling matters, including matters involving employee privacy, discrimination, harassment, retaliation, and wage and hour issues. Contact her: mwilliams@millerwilliamslaw.com or @MerEsqLA
*See City of Ontario v. Quon, 560 U.S. ____ (No. 08-1332, June 17, 2010).
** The “reasonable expectation of privacy” issue is relevant in the context of Fourth Amendment privacy cases involving public employers as well as in the context of common law “intrusion on seclusion” privacy cases involving private employers. See Stengart v. Loving Care Agency, Inc., 201 NJ. 300, 990 A2d 650 (N.J. 2010).
