Federal Court rules that employer may not look at its worker’s text messages

On June 18, 2008, the 9th Circuit U.S. Court of Appeals decided that employers may not read their employees' text messages without the employee’s consent. In that case, the employer provided the employee with a wireless pager. The employer attempted to audit the text transmissions by requesting a transcript of the employee’s text messages from the wireless provider. The employer did not have a formal policy regarding monitoring text message use.

The court held that even if the employer paid for the pager and text messaging service, such request was in violation of the federal Stored Communications Act. The court found that the Act prohibits wireless providers from releasing the text message contents to the employer.

The court further held that the employer’s request violated the employee’s Fourth Amendment privacy rights. The court reasoned that users of text messaging services have a reasonable expectation of privacy in their text messages stored on the service provider's network. The court further indicated that there were less intrusive means available to monitor the employee’s use of text messaging.

New technologies make it possible for employers to monitor many aspects of their employees' jobs. However, employers are cautioned to ensure that they develop employee monitoring policies that comply with state and federal laws.