The Ninth Circuit Court of Appeals, in a case entitled Quon v. Arch Wireless, held that text messages stored on the server of a cellular provider cannot be disclosed to an employer subscriber without the consent of the employee that is using the text messaging device.
To employers, this means, that unless you store text messages and instant messages on your company owned server, the employee will be able to assert they are entitled to privacy rights to the content of those text messages. Based on the tenor of this case, employers should consider altering their Internet usage, email, text and voice communications policies to provide that an employee, by using any company owned property or company provided service, consents to a review of any content of any communication including content that is stored by third party vendors. Since consent is being obtained, it would be of benefit to have the employee sign the consent.
To those of my readers that work for governmental agencies, the Quon case also creates a 4th Amendment protection in the content of text messages held on the servers of third party providers. To read this case,click here.