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Technology is wonderful. We are a society of constant contact, instant responses, portable documents and all access all the time.

While e-mailing may still be the leader when it comes to non-voice messaging, texting has exploded in popularity and use in recent years. Most wireless device plans include the ability to send and receive text messages. E-mail, even when it is routed to a wireless device, is usually also hosted by and downloaded to a company server. Text messages, on the other hand, usually only appear on the employee's phone/wireless device.

Many employers who have a company property policy include the disclosure that the company has reserved the right to monitor communications, in whatever form, where and when the need arises. So that would include text messages on a company-issued wireless device, right? No, according to a recent decision from the Ninth Circuit Court of Appeals. (The Ninth Circuit includes the states of California, Arizona, Nevada, Idaho, Montana, Washington, Oregon, Alaska and Hawaii.)

A police department had examined text messages sent by its employees to determine how much the employees should pay for personal use of the wireless device. Now, it is not uncommon for employers to allot a certain amount of the communication expense each month to employees based upon personal use of the devices. Usually, that is handled in ways that are considered non-intrusive, such as having the employee review the monthly charges for personal expenses. In this case, the department actively reviewed the actual messages in order to determine if they were work-related.

The employees filed suit, claiming invasion of privacy. Traditionally, courts have recognized that an employee has a limited expectation of privacy in the work setting, an expectation that has been extended to the use of company-issued communication devices. In this case, though, the Ninth Circuit said the employees had a reasonable expectation of privacy since the text messages were not hosted or downloaded by a company server but were instead stored by a third-party (the wireless service provider). For employers in the Ninth Circuit, they must now obtain the employee's consent or a search warrant before they view text messages or communications stored by third parties.

Thus, although the Ninth Circuit ruling may not be applicable to you because of where you are located, it does offer some insight on the distinction that may be drawn among types of wireless communications and where the privacy line lies. Additionally, it is noteworthy that the case dealt with a situation where the company was not conducting an investigation, but rather simply wanted to note the amount of personal use of text messaging. It remains to be seen whether the same conclusion would have been reached had the company had a more business-related necessity to review the text messages.

Some employers have eliminated the text messaging feature from company plans since those messages usually cannot be saved and are more difficult to monitor. Short of doing that, if you find yourself in a situation where you believe reviewing actual text messages is necessary to your business operations, tread lightly. And talk with your counsel!

TNT, hpE txtN!