Supreme Court to decide on privacy of workplace texting, but there are wider implications

Supreme Court will review a ruling protecting electronic conversation privacy. However, organizations are ultimately responsible for all communications within their purview
Written by Joe McKendrick, Contributing Writer

Is text-messaging from company accounts considered private conversation?  That's the question the United States Supreme Court just announced it would take up in a future ruling.

The Supremes just announced they will review a ruling from the 9th US Circuit Court of Appeals in San Francisco, that said the Ontario, California police department overstepped its bounds by demanding, from a text-messaging service, transcripts of conversations between police officers.

How how much privacy do employees have when they send text messages from company accounts? Users of text-messaging services "have a reasonable expectation of privacy" regarding messages stored on the service provider's network, according to 9th Circuit Judge Kim Wardlaw.

The issue of privacy in electronic communications intersects with the question of who's in charge of -- and liable for -- electronic communications that occur within workplace settings. Typically, in a legal context, this has been the onus of the organization. Email, which is essentially the same kind of medium as text messaging, is most often seen as owned by the organization that hosts the accounts -- and is responsible for storing and archiving the information in the event of litigation and legal challenges. All forms of electronic communication, in fact -- from text messages to email to social networking communications -- are on the table when the potential of future litigation enters the picture.

So there's a balance that needs to be struck between the liability of workplace communications and the right to privacy. Organizations are increasingly being held accountable for communications delivered within their purview, and we may start seeing more policing by regulators and intrusion by legal departments -- and less privacy for employees.

Over the past decade, the legal system caught up to email, which must now be managed and is treated as any other corporate record or statement. That is, companies are liable for the statements made by company representatives within email communications. Even more recently, instant messaging has fallen under the same scrutiny. Both email and IM, in fact, are construed as electronic communication. The United Nations Commission on International Trade (UNICTRAL) Model Law on Electronic Commerce — which serves as the basis for many national laws — defines a “data message” as “information generated, sent, received, or stored by electronic, optical, or similar means including, but not limited to, electronic data interchange (EDI), electronic mail, telegram, telex, or telecopy.”

Again, how can the right to privacy be balanced against the organizations' ultimate liability  for any and all statements made by employees or representatives in electronic communications or social media? That is an issue that inevitably needs to be hashed out -- not only through court cases, but through organizational policies and employee awareness and training.

This post was originally published on Smartplanet.com

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