2619 (2010), a case that raised the question of whether law enforcement employees had a reasonable expectation of privacy in text messages sent on employer provided devices. In Quon , the employer had a written policy allowing inspection of messages, but in practice did not regularly monitor messages. Although the Supreme Court declined to find that the employees had a reasonable expectation of privacy in the messages, the court held that the search was reasonable under the Fourth Amendment because the search was motivated by a legitimate work-related purpose and was not excessive in scope. Public employers must be mindful of this additional constitutional responsibility.
Federal Laws Applicable to Electronic Communications and Data
In addition to privacy laws, federal electronic communication laws may also be implicated by an employer’s search or review of employees’ use of technology. These laws include the Electronic Communications Privacy Act, [18 U.S.C. § 2510], et seq. the Stored Communications Act (SCA), and the Computer Fraud and Abuse Act (CFAA).
The Electronic Communications Privacy Act (ECPA or the “Wiretap Act”)
The federal Wiretap Act prohibits the unlawful “interception” of an electronic communication contemporaneously with the communication being made. As such, employers that monitor and intercept employee’s online communications through social media or other online sources could, depending on the circumstances, be liable under the Act. Most employers do not, however, monitor employee communications in real time as they are occurring. If there is no real-time, contemporaneous “interception” of an electronic communication, the Wiretap Act most likely does not apply.
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