The U.S. Supreme Court Monday is delving into a question that could have major ramifications for enterprise networks: Does an employee have a reasonable expectation of privacy--and is thus protected by the Fourth Amendment--when using an employer's electronic network and devices for personal communications?  

Generally speaking, the question hasn't caused a whole lot of turmoil in the private sector so far. Companies have been thought to have fairly broad leeway in monitoring their employees' network activity as long as employees are informed of the policy. The basic argument goes that companies need to be able to monitor their networks closely for the purposes of security and resource management. Courts have largely agreed, but there have been exceptions.

The case the U.S. justices are taking up was brought to them by the city of Ontario, Calif., and its police department, and it involves a SWAT sergeant, his wife and his girlfriend, among others. The sergeant used a department-issued pager to send text messages--some sexually explicit--to his wife, his girlfriend and others, exceeding the department's use limits. The department had a policy spelling out its right to monitor communications over city-owned equipment, but the sergeant maintains that a supervisor said the policy would not be enforced regarding pager use as long as he paid for any overcharges.

Eventually the sergeant's pager transmissions were reviewed by the department, which discovered that he received an average of 28 messages per shift, 25 of which were not related to work. After the police chief was informed that the sergeant had violated the department's policy, the sergeant sued in federal district court in the Central District of California and lost. He later won on appeal in the U.S. Court of Appeals for the Ninth Circuit, which ruled that the department's review of the text messages violated his right to privacy and that of his texting partners.

The decision out of the Ninth Circuit dealt solely with the government workplace, but it is being discussed in the larger context of employer networks and electronic privacy. In its petition to the Supreme Court, the city of Ontario argued that "public and private employers alike typically have in place policies establishing that employees should have no expectation of privacy in electronic communications and other computer usage on employee-owned equipment." 

The U.S. Department of Justice has sided with the city of Ontario, while several privacy rights advocacy groups, led by the Electronic Frontier Foundation, have sided with the sergeant and his texting partners. As Marcia Coyle discusses in an article in The National Law Journal, the Supreme Court's decision will likely have an impact on how lower courts deal with questions of electronic privacy in the private sector as well as the government.

Regardless of the outcome of the case, a couple lessons are already clear. First, if an organization has a policy in place for monitoring network activity, it should be made clear to all employees that it will be enforced; allowing managers to cut informal, non-enforcement deals on the side almost certainly leads to trouble. Second, as new devices are added to the network, the policy should be updated to include them explicitly. In this new and evolving area of law, it is a good idea not to leave anything in doubt. - Caron