Court Ruling Complicates Electronic Messaging

Recently, there was a Federal Appeals Court ruling about electronic messaging that received lots of attention. This is a minefield of legal issues so any ruling is newsworthy. To protect your company and yourself, pay attention to what is happening.

There are three types of electronic messages at issue. The most obvious is email. The next is instant messaging where desktop users chat electronically. And finally, text messaging which is the mobile phone equivalent of both.

Many companies have policies in place roughly stating that email is for company correspondence only. Email messages are owned by the company and may be monitored.

This pretty much means that your employer may read your email messages and even block them from being transmitted if it chooses.

As a result , many people use third-party email accounts like Google Mail or Yahoo Mail for personal purposes even when at work. So does the company policy regarding email communications apply to these personal accounts?

Probably not, but other policies regarding personal use of company computers are likely to address the issue.

Instant messaging makes things more complex. Instant messaging can take place between two employees located in the same building or across the globe. It could involve an employee and a third party having a business or personal discussion.

Technically, instant messaging is not email. The way instant messages are transmitted is different. Email is like sending a postal letter, only faster, while instant messaging is like making a phone call using your fingers instead of your voice.

The legal system views them differently and so should your company policies.

Text messaging is the most complex. By its nature, text messaging always involves an outside supplier. One or more mobile phone companies transmit every text message. Also, the mobile phone may or may not be owned by the employer.

Should company business be conducted via text messaging? If so, is it still okay when the employee is using his personal mobile phone? How will the texting conversation be archived?

Now you see why electronic messaging is a legal minefield. Let’s go back to the appeals court ruling to understand what was at issue and how it was decided.

The case involved the City of Ontario, California and its wireless provider. The City provided two-way alphanumeric pagers to police officers. The officers sent text messages to each other and third parties.

The pagers had a monthly character limit. If the limit was exceeded, the officers were required to pay the extra charges. The City also had a policy against using the pagers for personal matters and reserved the right to audit messages.

It seems fair and reasonable but it gets complex. One officer exceeded his monthly character limit multiple times and paid the overage charges. The City decided to audit his messages – something they had never done before – and asked the wireless provider to deliver them.

The Appeals Court ruled that the wireless provider did not have the right to disclose the officer's messages without his consent because he had a "reasonable expectation of privacy". While the ruling was narrow in scope and raised more questions than it answered, this much is clear – if you use a third party provider for electronic messaging, your company policies better reflect it.

Only a lawyer should give you legal advice. I can give you some guidelines for developing acceptable use policies. Keep in mind that the electronic messaging landscape is shifting and many more court rulings are needed to clarify what you can and cannot do.

Despite this, having clear company policies in place improve your chances of avoiding lawsuits. If you get sued, you will be in a better legal position.

Company policies must address different types of electronic messaging. Discuss email using a company-supplied email client such as Outlook or Notes as well as web access through a browser. (Accessing company email using a home computer may require a different policy from using company equipment at the office.)
Personal email services such as those offered by Google and Yahoo are generally covered under the topic of using office systems for personal correspondence. However, how do you feel about employees conducting company business through their personal email accounts?
Instant messaging (IM) adds new wrinkles. There are many IM software applications. AOL, Google, Microsoft and Yahoo are just a few. Many companies standardize on a single IM client and block all others. Some do not allow IM at all. Be clear about what is okay and what is not. If IM is allowed, can it be used for company business?
Text messaging is spreading so fast that company policies, new laws and court cases cannot keep up. Do not even think about trying to ban texting. Just be clear about acceptable use. It is a good idea to follow-up a text message agreement with an email message confirmation just as you would with a voice conversation.

If you reserve the right to monitor and audit messages, you better do so from time to time. If not, your employees will develop a "reasonable expectation of privacy".

These points only scratch the surface of a complex legal arena. We have not addressed other electronic communications such as personal websites, blogs and social networking sites like Facebook, MySpace and Twitter.

Do not let the complexity of the technology deter you. Establish clear and simple policies. Be sure to back them up with reasonable enforcement.

Vin D'Amico is Founder and President of DAMICON, your ADJUNCT CIO™. He helps companies avoid the subtle mistakes that cause missed deadlines, lost opportunities and fragile results. He shows them agile approaches that slash risk and cut development time so they get to market 25-50% faster. He helps them carry that momentum into the sales cycle using white papers and case studies that accelerate the selling process.

This article appeared in Vin's monthly Virtual Business column for the IndUS Business Journal in July 2008.

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