Nancy Flynn on Supreme Court to Settle Monitoring vs. Privacy Debate

The following is a guest post by Nancy Flynn author of The e-Policy Handbook, 2nd Edition (AMACOM) and Executive Director of The ePolicy Institute on the U.S. Supreme Court hearing a workplace monitoring case that could prove to be a real game-changer for employer surveillance and employee privacy.

The case involves Ontario, California police sergeant Jeff Quon, who cried foul when monitoring revealed he was using his employer-provided pager to send excessive numbers of sexually explicit texts to his wife and girlfriend, both of whom are department employees. Claiming his personal texts were confidential, Quon, along with his wife, mistress, and another officer, sued the department, the city, and the police department’s paging company.

Quon claimed that his privacy rights were violated because the department’s written policy did not specifically state that text messages were monitored along with e-mail and the Internet. Quon also argued that he was protected by the department’s informal policy of overlooking personal text messages, as long as the user paid for any overage charges.

When Quon and his codefendants filed suit in 2008, the lower court agreed that the department’s informal “no monitoring” policy trumped the formal written monitoring policy. The defendants appealed, and on Monday, April 19, the Supreme Court began hearing the case.

As I discussed last week on Fox & Friends and CNN, the outcome of this case would affect public employers and employees directly, but it’s also likely to have implications for private employers who have long exercised the legal right to monitor employees’ online activity. The federal Electronic Communications Privacy Act (ECPA) states that an organization’s computer system is the property of the employer, and the employer has the legal right to monitor all transmissions and activities on the system. Employees, on the other hand, have absolutely no reasonable expectation of privacy when using a company system.

It appears that the Supreme Court is likely to support the employer’s right to monitor and rule against Quon’s invasion of privacy claim. On Monday, several justices said that the Ontario police department had acted reasonably in light of its written policy that alerted employees to monitoring and warned them that they have no reasonable expectation of privacy when using company equipment. Justice Stephen Breyer said that he didn’t see “anything, quite honestly, unreasonable about that,” according to the Huffington Post.

The best advice for organizations that want to avoid similar invasion of privacy claims:

1. Use written policy to clearly spell out your organization’s rules regarding the use of business and personal tools and accounts. Implement separate policies for every electronic tool: e-mail, IM, Web, text messaging, cell phones, smartphones, pagers, Twitter, Facebook, etc.
2. Address issues including business use, personal use, content, language, netiquette, monitoring, privacy, among others. For help establishing your organization’s written e-policies, refer to my latest book, The e-Policy Handbook, 2nd Edition.
3. Support written policy with mandatory employee training. Require all employees to sign an acknowledgement form, attesting that they have read the organization’s e-policies, understand them, and agree to adhere to them, or accept the consequences, up to and including termination.
4. Enforce written policy with technology tools including monitoring tools and URL blocks.
5. For additional tips and best practices, see my Guidelines for Creating Effective Social Media Policy.

A recognized expert on e-mail and Internet policy, compliance, and communications, Nancy Flynn is founder and executive director of The ePolicy Institute. The ePolicy Institute helps employers limit electronic risks, including litigation, through effective policy, training, and technology. The author of books including The e-Policy Handbook, Instant Messaging Rules, and Blog Rules, Nancy Flynn is an international speaker and seminar leader who also serves as an expert witness in Internet-related litigation. The ePolicy Institute conducts widely reported annual surveys in conjunction with American Management Association. A popular media source, Nancy Flynn has been interviewed by Fortune, Time, Newsweek, BusinessWeek, Wall Street Journal, US News & World Report, Readers’ Digest, USA Today, New York Times, NPR, CBS Early Show, CNBC, CNN, and Fox among others.

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