How 'privacy rights' on company phones could backfire

Supreme Court case isn't as black-and-white as many believe

Earlier this week we learned that the Supreme Court is going to decide whether naughty text messages sent by a cop via a taxpayer-funded pager deserved privacy protection or were fair game for the police chief who discovered and disapproved of them. The ruling is also expected to apply to private workplaces and various communication devices such as phones and computers.

While a California appeals court ruled the officer and his girlfriend were entitled to their sexting privacy, the prevailing opinion in my reading has been that business equipment is business equipment and as such anyone issued it must adhere to company usage policies at all times and expect personal privacy at no time. That's pretty much my opinion, too.

But it's not that simple, legally speaking.

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As noted in the appeals court ruling, many employers -- most, I'm going to guess -- explicitly or through indifference allow their employees to use company-issued phones and computers for personal communications. It just makes sense for both parties in most situations; employees don't want to carry (or pay for) multiple gadgets, and employers don't want their people running out to a pay phone every time the urge to call home (or a main squeeze) becomes overwhelming.

So, given this conveniently permissive state of affairs, privacy advocates will argue that it's perfectly understandable for employees to expect a measure of privacy even when yapping or texting on the company or taxpayer dime (this is what the lawyers are arguing in the Supreme Court case).

Sounds defensible, but (sigh) it's not that simple.

Employers not only have a right to dictate usage policies and limits, they have an obligation -- a legal obligation -- to ensure that their employees do not use company equipment to abuse or injure others. Sexual harassment litigation and lawsuits over cell-phone use while driving are but two of the legal quagmires companies face routinely at least in part because they allow personal use of workplace devices.

So what about a compromise? Perhaps the Supreme Court should rule that employers have a right to pry only when probable cause exists that the employee has violated company policy or committed a crime. Otherwise, keep your eyes to yourself, chief.

Who could object? Well, I might, and I'm guessing a lot of employers will, too.

If the court attempts to split the baby in this way, debate and litigation will simply shift to what constitutes probable cause. Moreover, many employers will decide that they can't or don't want to be bothered parsing what constitutes probable cause. End result: More employers will simply prohibit personal use of company phones and computers.

Don't think it could happen? Oh, it could happen.

So I for one am hoping the Supremes draw a bright line here: They should rule that there is no right to privacy whatsoever when using a company- or taxpayer-issued communication device. This would best assure that most employers -- including governments -- will continue to grant reasonable personal use of such devices to their employees.

And, if at age 52, I should suddenly feel the urge to send my first text -- and if it happens to be a naughty one, at that -- I'll just have to do it using my own phone.

Copyright © 2009 IDG Communications, Inc.

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