Laura A. Rogal Intellectual Property Law Blog on Lawyers.com

What expectation of privacy do you have in your cell phones and other personal communication devices?

Dr. Martin Cooper never could have imagined the possibilities when he made the first call from a cell phone in April 1973[1].  Now, no matter where you go it seems you can find someone using a cell phone (or its progeny, the “smartphone”).  The cell phones of 2009 are nothing like the phone Dr. Martin used to telephone his colleague while walking the streets of New York more than thirty-five years ago.   Our phones nowadays do much more than just call down the street; we can text, email, take pictures, search the internet, and connect with someone ten thousand miles away.  This functionality has necessitated that cell phones become an integral part of doing business. 

Employers often furnish employees with cell phones fulfill part of their job duties.  In doing so, both the employer and the employee must address an important question - does the employer who provided a cell phone to the employee have access to the employee’s personal communications made on that cell phone?

In 1986, Congress adopted the Stored Communications Act (the “SCA”) due to privacy concerns presented by the Internet that were not previously covered under the Fourth Amendment.[2]  The general purpose of the SCA was to prevent service providers from divulging personal communications to certain individuals and entities.[3] As a result of the SCA, communications service providers were classified into certain subcategories, with each category of classification dictating, among other things, to which the provider was allowed to release the stored communications.  If an employer is the “subscriber” of an employee’s cell phone service, then they may have access to the employees’ communications made on that cell phone.[4]

In June, 2008, the Ninth Circuit Court held that employees did have an expectation of privacy in their text messages, even when the employer provided the cell phone’s service.[5]  However, the Court restricted their decision to situations in which the employer lacked a formal policy regarding the pager usage.[6]  In making its ruling, the Court looked to specific conversations and policies particular to that case.  The Court neglected to set forth a bright line rule regarding an employer’s access to an employee’s personal communications on a corporate-controlled telephone.  Whether or not access is granted turns on the employee’s expectation of privacy, which can be controlled by clear written policies set forth by the employer. 

While it may seem obvious, employees need to be made aware that sending personal communications from the company’s phone is never a good idea.  Ensure that all employees are aware of the company’s policies regarding phone, internet, and email usage.  The best practice is to make certain that your company has an official policy in place addressing all electronic media usage and guarantee all employees are aware of the policy.