Texting privacy before U.S. Supreme Court

PHOENIX -- A Phoenix attorney says a U.S. Supreme Court ruling on the privacy of text messages sent on company cell phones could be big for both public and private employers.

The high court will hear an appeal of a 9th Circuit Court of Appeals ruling which held that public employees have a right to keep their text messages private, even if they are sent on a cell phone provided by their employers. The appeals court ruled in a case alleging that a California police department had reneged on a promise not to look at personal texts. The department claimed it looked at messages after employees failed to reimburse the department for personal texts sent on department phones.

The issue raises many questions, said attorney John Balitis.

"If, for example, an employer does not take adequate precautions and says things that cause even a private employee to develop an expectation of privacy in a thing like a text message, that employer may create a situation in which it is prohibited, by its own conduct, from reading those text messages."

If the Supreme Court upholds the 9th Circuit, Balitis said, "There's a possibility some time soon that public and/or private employers may be restricted in their ability to review text messages sent on company devices."

That could create a whole set of problems, he said.

"High volumes of unmonitored personal text messaging can result in sexual harassment claims, loss of productivity in the work place, unauthorized overtime work being performed," he said.

Balitis said employers can take steps to protect themselves.

"One of the things that employers can do in order to address the situation is to create and implement clear, unambiguous electronic communication policies, so that there's never a question about whether an employee has an expectation of privacy in something like a text message."

The Supreme Court is expected to rule on the case this spring.