Should your boss be allowed to read your text messages, your emails, your tweets? The answer to that question is not, legally speaking, quite so clear cut as you might hope. After all, if you’re texting (SMS) or tweeting on company time, using a company computer or cell phone, then you might be breaking your contract of employment.

But, what constitutes company equipment? Maybe you have a leased cell phone that your boss lets you use for personal calls on your break. Maybe you’re out of the office, tweeting on your company netbook during lunch. Where are the lines drawn? Should we expect 100% privacy for all our communications regardless? If you answered yes to that question, then consider the employee who is using a company internet connection to defame the company on their Facebook page, or sharing trade secrets with friends at a rival company via Bebo. Is that different?

Apparently, US federal case law is starting to define what digital privacy expectations employees may have. As Americans who know their civil rights will be well aware, the Fourth Amendment of the US Constitution provides some protection to public employee’s privacy interests. Moreover, the Stored Communication Act of 1986 limits the ability of an electronic communications service to divulge contents of text messages without the consent of the recipient or addressee.

However, according to technology, law, and business expert Gregory Mosier of the University of Nevada, “These protections provide only minor restrictions on the ability of an employer to ascertain the contents of an employee’s text message.”

The rub lies in a particular case cited by Mosier in the International Journal of Private Law, which highlights several of the problems an employee might face:

In Quon v. Arch Wireless Operating Company, a police officer with the small city of Ontario in southern California, had utilised a pager device provided to him by his employer to send a number of messages that exceeded the number of characters permitted by the contract the employer maintained with Arch Wireless, the text message service provider. The city requested that Arch Wireless provide a transcript of the messages sent from the employee’s device and upon review determined that many of the messages sent by the employee were personal in nature and/or sexually explicit.

Once Arch Wireless had turned over the SMS transcripts to the city, the employee, officer Jeff Quon, filed a lawsuit seeking the court to declare that the city and certain officials had violated his rights and those of others under the Fourth Amendment as well as violation of state laws, and the 1986 Act.

Mosier points out that in resolving this case, which of course has implications for US employees, any analysis requires the answers to two questions: Does the employee have a reasonable expectation of privacy? and Was any search that was conducted reasonable?

The lines seem to have been blurred and probably are across the US when an informal policy on personal use of company equipment or services by employee is deemed acceptable (usually if they reimburse any personal costs). In this case, the employee was informally “allowed” to use the cell phone for personal texts but the general employment contract policy stated that all e-mail and internet communications were “subject to review and discovery”. In other words, the informal policy contradicted the formal policy.

The court found in favor of Quon, but this does not necessarily mean that all digital transactions can be considered private. First, Quon is a government employee so there are special circumstances in place, secondly, it was perhaps only the conflict of interest between the informal policy and the general policy that led the court to this conclusion.

US employers everywhere will now be tightening their employee contracts in light of this decision and most likely rescinding any informal policies that may have been in place. The point is that the Quon v Arch result was very narrow and does not preclude employers from auditing use of their equipment. Mathew Hirsch agrees, that the impact of this result may be limited. “The ruling in Quon v Arch is significant for some employees but less so for others. As for private employers, it might bear no significance at all.” The Compliance Building blog recently came to a similar conclusion.

Nevertheless, employers, both public and private, will begin to institute more formal rules about what types of electronic communications are the subject of employer interests, says Mosier. Such policies might include reference to ownership of the device used to create the communication, the time the communication takes place and the ownership of the storage used to transmit the message.

“These technology-privacy issues are going to continue to grow in prominence,” Mosier told Sciencetext, “In any event, the communication that provides the best form of privacy remains the spoken word,” says Mosier, although just make sure you keep the explicit stuff for the privacy of your own home.

Gregory C. Mosier (2009). Text messages: privacy in employee communications in the USA Int. J. Private Law, 2 (3), 260-266

Quon v Arch feature article from WHD Online Newsletter was found via twitter thanks to @ronpatserlio. Controversy around the case emerged earlier this year when there were rumors of a rehearing, these were denied by the courts.