Why your text messages are not private

The media, including your correspondent, reported last week that the Ninth Circuit decision in Quon v Arch clearly established an employee's right of privacy in his text messages, even on an employer-issued pager.The court said that a police department that looked through an officer's text message transcripts in violation of its own informal policy and without the employee's consent violated his Fourth Amendment rights against search and seizure.

The media, including your correspondent, reported last week that the Ninth Circuit decision in Quon v Arch clearly established an employee's right of privacy in his text messages, even on an employer-issued pager.

The court said that a police department that looked through an officer's text message transcripts in violation of its own informal policy and without the employee's consent violated his Fourth Amendment rights against search and seizure.

But Matthew Hirsch at GigaOm rightly points out that the holding was considerably narrower than that. The holding was limited to government employment situtations. That's because the Fourth Amendment only applies to government action.

It is a fundamental concept in constitutional law that no individual rights attach unless their is government action. Private companies or individuals who the state is somehow intertwined with may be deemed to be "state actors" (classic example: the segregated coffee shop located in the government-owned parking garage). But short of such relationship, the Fourth Amendment does not apply to private employers.

What's not clear is whether the court was applying some special rules for public employment or some more general Fourth Amendment jurisprudence, the Volokh Conspiracy notes.

To make a long story short, such policies are critical in the public employment context under O'Connor v. Ortega, but are not very important in the private employment context (except to the extent it provides third party consent rights for the employer).

In any case, notes Philip Gordon, all employers have to do is distribute "a policy unambiguously stating that employees communications using corporate resources will be monitored and are not private."

Speaking of Fourth Amendment stuff, check out my lengthy article on last year's Supreme Court decision that passengers in cars pulled over in a traffic stop are seized for purposes of the Fourth Amendment.

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