Friday, June 18, 2010

Supreme Court allows employers to monitor personal use of company devices, but within workplace-related reasonableness; indrect implications for online reputation policy?

The Supreme Court, in City of Ontario, CA v. Quon has decided that employers may monitor personal use of employer-supplied cell phone, Blackberry, notebook and similar devices, as long as the monitoring has a reasonable work-related purpose. The link for the opinion is (web url) here.

The case is important because some employers expect employees to keep such devices on their person at all times, so they do permit some personal use. Kennedy wrote that individuals should indeed consider buying their own devices for personal use, but in some cases it may not be reasonable for an employee to carry his own gear and his employer’s simultaneously, as when going through airports on business trips.

The Washington Post has a front page story today Friday, June 18, “Company cell? Your boss can eavesdrop, justices say; Reasonable review of phone, computer communications allowed,” link here.

Justice Kennedy did make the interesting observation that "Cell phone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self-identification That might strengthen the case for an expectation of privacy."  Curiously, it could strenghten the case of an expectation of "right of publicity" too.

An indirect conclusion from his statement might be that employers are limited in their ability to monitor what employees say on their own blogs or on Facebook on their own time, as long as they don’t betray confidences or commit specific intellectual property violations (like copyright infringement or libel). It’s conceivable that their reasoning could cast aspersion on the practice of vetting applicant “online reputation” as a legitimate workplace practice. So there could even exist an indirect effect on the privacy-and-social-media debate.

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