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Wednesday, October 8, 2008

Employee text messaging privacy in the wake of the Detroit mayoral scandal

by: Marc Kaplan, MTTLR Associate Editor

Image Andy texting what Cheney should say by Steve Rhodes.
Used under a Creative Commons BY-NC-SA 2.0 license.
Text messaging has exploded in popularity in the U.S. and around the world. Indeed, 75 billion text messages were sent in the U.S. in June 2008 and 40% of American teenagers believe they can text blindfolded. With so many communications exchanged through this medium, the privacy of text messages has come under legal challenge in a number of contexts. Employees frequently have access to text-messaging through work-provided devices, and not-uncommonly use the devices to send personal messages. Whether they can expect privacy in relation to those messages is an unsettled legal matter.

A case study: the Kilpatrick Scandal

In one example, former Detroit mayor Kwame Kilpatrick resigned from office in September, under criticism after his “private” text messages – from his government-issued pager – were revealed following a whistler-blower suit. The suit alleged that the mayor unlawfully discharged Detroit police officers because he was afraid the officers would reveal his extra-marital relationship with his Chief of Staff, Christine Beatty. At trial, the mayor contended that allegations of an affair were "preposterous", and the vigorous defense was able to preserve the text messages from discovery before the trial. Even without the messages as evidence, the jury found the mayor guilty and gave the aggrieved officers a multi-million dollar verdict.

After the trial, the plaintiffs succeeded in obtaining the text messages through subpoena, and discovered that they bared a rather different story than that maintained by Kilpatrick.
Beatty: "And, did you miss me, sexually?"
Kilpatrick: "Hell yeah! You couldn't tell. I want some more. "
Detroit Free Press
With this new leverage, the plaintiffs offered to settle as opposed to fighting through the appeal. The mayor agreed to the settlement, in what appears to have been an attempt to cover up the newly exposed text messages.Although the issue was litigated all the way to the Michigan Supreme Court it was eventually ruled that the settlement agreement was a public record and subject to the state’s freedom of information act.The text messages, now accessible to the public, have continued to be relevant in subsequent proceedings against Kilpatrick and Beatty for perjury, conspiracy, obstruction of justice, misconduct, and other charges.

Employee privacy protections

Courts have split over the protections given to text messaging, attempting to weigh the need to access communications in the ubiquitous and casually-used medium against privacy concerns.

In Quon v. Arch Wireless Operating Co, a highly publicized case factually similar to Kilpatrick’s, a police department searched an officer’s text messages to determine whether the officer exceeded his quota of text messages by using it for personal communications. The district court held that the officer’s text messages sent through the government-issued pager were subject to the privacy protections of the Stored Communications Act and were therefore not searchable by his employer. The 9th Circuit affirmed in part and held that the officer had a reasonable expectation of privacy in the text messages and that the search had violated his 4th Amendment rights.

Not all courts have broadly construed the Stored Communications Act or constitutional protections of text message privacy. Indeed, in a separate case involving Mayor Kilpatrick’s text messages as they related to a murder investigation, a district court in the 6th Circuit breezily distinguished Quon by holding that it was inapplicable to a case with the same fact pattern but where personal text messages were not the targetof the search.

These holdings appear contradictory, but the more important issue may be what questions the cases leave unanswered. Quondoes not specify whether the holding should apply to both public and private employers. Commentators also also disagree on whether Quon will change employers’ practices significantly. Drawing general rules from these cases or trying to predict the direction of this fertile area of the law appears fraught with danger, as does texting personal messages from your work-issued Blackberry®, unless you live in California.

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Blogger Benjamin Wright said...

The Quon case may give employers incentive to broadcast multiple, repetitive privacy disclaimers. What do you think? --Ben http://hack-igations.blogspot.com/2008/06/employee-imtexte-mailvoicecomputerinter.html

October 8, 2008 at 5:19 PM  
Blogger Unknown said...

I think even if the police department in Quon had posted multiple, repetitive privacy disclaimers, the holding would not have changed. In my view, the court latched on to the fact that there was not only a stated informal policy of not reviewing the text messages, but also the same system in practice. The police department allowed Quon to pay the overage "3 or 4" times rather than having his text messages subject to search. This certainly created a reasonable expectation of privacy and gave the court warrant to stretch and hold that the search itself was also unreasonable. I think that Quon can be read narrowly to hold that if the effective policy invites an expectation of privacy - even if it overrules an unused formal written policy - this privacy right will be protected. I should think that most employers do not have the type of "bargain" system that the police department in Quon had, where the employees were basically subsidizing their privacy rights.

That said, I think Quon could also be read broadly, which would force employers to be significantly more proactive about broadcasting and demonstrating their privacy policies. Indeed, Quon could be read to force employers to actually actively monitor their employees communications and broadcast these intentions to preserve their right of monitoring. However, given the high costs of this interpretation, I think it is unlikely.

October 12, 2008 at 9:17 PM  

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