R U Preserving UR Text Messages?

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[author: Tim Banks]

A 2011 report for the Pew Research Center’s Internet and American Life Project found that Americans between the ages of 18 and 24 exchanged on average nearly 110 text messages on a normal day and that an average of 109.5 messages on a normal day with a median user exchanging approximately 50 text messages a month. Even those in an older age group – 30 to 49 – were texting in significant numbers at an average of 27 texts per day.

Text messages are not confined to personal use, although that is likely still the most pervasive use of text messaging. Close-knit team members may use text messages to convey brief information or simply to prompt a call or attention to email. Text messages may also be used more nefariously as a means to communicate information in an attempt to avoid detection by an employer, particularly when sent and received from employee-owned mobile phones.

In the public sector environment, there may be a duty to produce text messages in response to access to information requests if those text messages are under the “control” of a public institution subject to access to information legislation. Access to information legislation typically defines “records” broadly in a technologically neutral way. The issue, however, is whether text messages are under the “control” of the institution. The answer is straightforward with respect to employer-owned mobile devices. However, the answer is more complex when dealing with employee-owned devices. The Supreme Court of Canada has endorsed an understanding of “control” that would include some power of direction over the record. Whether a policy on employee text messaging would be sufficient to establish control is uncertain.

In response to the possibility that records are falling outside of the access to information system, the Information Commissioner of Canada recently initiated an investigation into the use of text messages and similar forms of communication in the Federal public sector. The Commissioner noted that there is no government-wide policy on text messaging. Her investigation appears, however, to be limited to government-issued wireless devices.

In the private sector, the issue is equally complex. Leaving aside privacy issues relating to non-work-related texts on employer-owned devices, it is impractical for an employer to control the use of text messaging on personal devices. What is clear, however, is that inappropriate use of text messaging may pose a significant record-keeping and compliance challenge for organizations. My colleagues have posted about harassment complaints involving text messages sent and perhaps not sent. More broadly, however, text messages pose challenges for managing communications regarding matters that may be highly regulated or potentially litigious. If a regulatory investigation is commenced or litigation reasonably anticipated, the organization may need to take steps to direct employees to preserve relevant text messages.

There is no easy answer to the issue of text messages. However, like Canada’s Information Commissioner, it may be time to consider whether your organization’s policy and employee training is up to the challenge.