The Law of Unintended Consequences
Jul 9th, 2008 by phil
Ars Technica reports on a quirky 9th Circuit decision that has significant implications for privacy in the workplace. According to the Ars story, “the ruling provides an extensive space for workspace privacy,” but I am not so sure. It turns out that the case hinged on a police officer who claimed that the department he worked for invaded his privacy when they reviewed the messages he had been receiving on his text pager. The department had a policy that the usage of the pagers could be audited, but they apparently never followed through on the policy.
From the story:
Employers are allowed to set policies where a given area they provide, either real or virtual, can be searched. But if that policy is never acted upon, then employees can legally expect that they can maintain private materials there. This was precisely the case with the informal overage policy—by handling payments informally, the department gave Quon the expectation they would not suddenly examine the contents of texts sent through that account.
Employers have a legitimate concern about the use of communications tools that they provide to employees. It appears that the court has said that in order for employers to maintain the right to audit communications, then they must follow through on regular audits whether they want to or not. I think this will force paranoid businesses to regularly pore through their employees’ email, IM and text messages so that when something bad does happen the employee involved cannot claim that they had an “expectation of privacy.” The end result will be less privacy for employees.
