Privacy Issues in the Community College Workplace

In Quon v. Arch Wireless Operating Co., Inc 415 , the Ninth Circuit ruled that the employer’s text message provider, Arch Wireless, violated the Federal Stored Communications Act, finding that it was an ECS, and thus, it could not release transcripts of employee text messages, sent and received via employer issued pagers, without the lawful consent of either the sender or the recipient of the communications. While the Supreme Court reversed other aspects of the Ninth Circuit’s decision in Quon v. Arch Wireless Operating Co., it did not grant review of the ruling that Arch Wireless violated the SCA. Therefore, that ruling remains good law. 416 In Quon , the employer, a city, was the subscriber or contracting party with Arch Wireless, did not have the right to consent to the release of the text message transcripts. The Ninth Circuit rejected the trial court’s finding that Arch Wireless was an RCS. Instead, it found that Arch Wireless’ primary function was to send and receive electronic communications (by allowing users of the pagers to receive and send text messages) which fell precisely within the definition of an ECS. Arch Wireless stored the communications temporarily or for backup purposes; this type of storage by an ECS was contemplated under the Act. Arch Wireless did not provide the city with either “processing services” or “computer storage services,” the primary functions of an RCS. Generally, employers route and store their e-mail on their own servers and equipment. However, text messages, which are communicated via cellular telephones or pagers, are routed through a wireless communications provider (an ECS) which often only temporarily stores the record of the communication. If an employer wishes to avoid the uncertainties that arise when messages, including e-mail, are routed through the network of an outside communication service provider, the employer may choose to limit its communication resources to those that are routed through the district’s server and equipment. For example, certain cellular telephones have software that allows the employer to route all communications through its network. Additionally, in light of the ruling in Quon v. Arch Wireless , companies in the business of providing electronic communications services will likely require a specific waiver from the end user of an electronic device (such as cellular telephones, personal digital assistants) as a condition of releasing information to the employer (the subscriber). For this reason, if the employer wants to monitor communications transmitted via ECS providers, it should obtain a signed release from all employees using employer issued pagers and cellular telephones that specifically allows the ECS provider to release the communications to the employer. 3. B USINESS U SE AND N OTICE E XCEPTIONS Two exceptions to the Wiretap Act and the ECPA may apply to employers. The first is a “business exception” that allows operators of communication service providers to monitor the use of their equipment in the ordinary course of business for purposes of protecting their rights and property. For example, an employer that hosts its own e-mail service may monitor employee activity on its server.

Privacy Issues in the Community College Workplace ©2021 (c) Liebert Cassidy Whitmore 135