E-mail, Texting and Privacy Rights in the Workplace

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This article was originally published in the Westlaw Journal Telecommunications Industry Report

I do it. You do it. Virtually everybody does it. The "it" is using your computer at work, or your company-issued cell phone, or your work e-mail account accessed remotely, to conduct non-business-related communications. Whether they are ordering the latest electronic gadget from Amazon.com or calling their friends to confirm after-work plans, employees in a workplace increasingly depend upon e-mails, texting and cell phones, both inside and outside their physical workspaces, to achieve maximum production efficiency while also connecting with their non-work relationships. As employers struggle to deal with employee use of technology in the workplace, courts also struggle to analyze the impact of that technology in the workplace in efforts to balance an employee's expectation of privacy and the employer's right to control its own work environment.

Recent developments ensure that the privacy rights in the workplace as they relate to e-mail, texting and mobile phone communications will continue to come under judicial scrutiny. A few months ago the New Jersey Supreme Court examined an executive's expectation of privacy in e-mail messages to and from her personal attorney from her work computer in Stengart v. Loving Care Agency, 990 A.2d 650 (N.J. Mar. 30, 2010). Meanwhile, the U.S. Supreme Court recently issued its decision in City of Ontario v. Quon, No. 08-1332 (June 17, 2010), in the Court found that the City of Ontario Police Department's review of private pager/text messages sent by a police officer on his department-issued pager did not violate the police officer's Fourth Amendment rights.

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