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Washington Journal of Law, Technology & Arts

Abstract

In June 2008, the Ninth Circuit Court of Appeals held that public employees have a reasonable expectation of privacy in the content of text messages sent from employer-owned devices. The court concluded that the expectation of privacy arises vis-à-vis the text-message service provider, even where an employee has signed an explicit waiver of such an expectation. The decision, Quon v. Arch Wireless, raises difficult questions about the limitations placed on text-message service providers by the Stored Communications Act, and an employer’s ability to regulate and monitor employee use of technology in the workplace. Although Quon only applies to public employers, the opinion also gives private employers a framework for creating technology-use policies that will protect employer access to text-message information. This Article will discuss statutory and constitutional limitations on accessing employee text messages, and what employers can do to reserve the right to review text-message communications.

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