Employer-Owned Phone Privacy Discussion

According to our company policy, my company monitors everything you do with a company device that includes phones, tablets, iPads and computers. At the  login screen, the warning login message display states that:  Your continued use of this protected company system consents to the following , you have no expectation of privacy on this device, communication are routinely monitored, you consent to interception and seizure of all communication or data qualifies for the protection by privilege or is covered by the a duty of confidentiality… etc. long story short – they own it.

Therefore, unless company policy specifically states otherwise (and even this is not assured), your employer may monitor most of your workplace activity.

From the Employer perspective as stated by the privacy Rights Clearing House (PRC), Employers are motivated by concern over litigation and the increasing role that electronic evidence plays in lawsuits and government agency investigations. Such monitoring is virtually unregulated.

PRC narrates that Employees are given some protection from computer and other forms of electronic monitoring under certain circumstances. Union contracts, for example, may limit the employer's right to monitor. Also, public sector employees may have some minimal rights under the United States Constitution, in particular the Fourth Amendment which safeguards against unreasonable search and seizure.

From the employee’s perspective, Monitoring can signal a lack of trust, which can breed resentment and reduce employee morale and productivity. Employees may feel their privacy has been devalued or violated (Miller, 2019).

Under federal law, employers are only allowed to monitor business telephone conversations; if they realize that the call is personal, they must hang up. However, if you have been explicitly told not to conduct personal conversations on certain business phones, you run the risk of that conversation being monitored by your employer. Employers may also monitor your personal phone conversations if you have given them your consent. Some state laws provide further safeguards on telephone conversations by requiring that not only the employee, but the person on the other end of the phone line know about and/or consent to the call being monitored (Midwest New Media, 2019).

When it comes to government agencies as stated by the Cyber@Harvard, public sector employees monitoring is somewhat different from that of private sector employees in that government employers are subject to federal constitutional constraints because their conduct is considered "state action."  Private employers are not subject to constitutional claims unless their investigations become intertwined with a state investigation.

The Fourth Amendment applies only to government actions, not to actions of private employers.  As a result, government employees may appear to have a somewhat stronger claim for protection against electronic monitoring and surveillance than private sector employees

As seen with case: O’Connor v. Ortega, 480 U.S. 709, 716 (U.S. 1987)

To what extent can an employer monitor an employee’s calls or text messages on an employer-owned phone?

          An employer can monitor, listen in, and record employee calls on an employer owned phone and phone system.  This includes; cell phones, other handhelds, view voicemail, text messages, and e-mails.  Employees of private companies, as well as government employees, should have no expectations of privacy, when using a company owned device. Employers are not allowed to view private content, but since there is no subject field on text messages indicating it is private, it can be read by an employer.  

          However, there are two main restrictions on workplace monitoring.  The Electronic Communication Privacy Act of 1986, (ECPA) (18 U. S. C. section 2511 et. seq.) and Common-law protections against invasion of privacy. Only federal law directly governs the monitoring of electronic communications in the work place.  While the (ECPA) appears to prohibit an employer from intentionally intercepting an employee’s oral, wire and electronic communications, there are two exceptions.  The business purpose exemption, permits employers to monitor oral and electronic communications as long as, the company can show a legitimate business purpose for doing so.  The consent exception, which allows employers to monitor employee communications, provided that they have the employees consent.  As always, there is a loophole. The consent exception is not limited to business communications, therefore a company can arguably monitor personal communication on employer owned phones.

             An example is City of Ontario v. Quon (2010). The U. S Supreme Court found that officer Quon’s personal text messages on a government owned pager were not private, and the employer/police department, had the right to view the messages, even though public employees, unlike private employees, have 4^th Amendment rights.   

          Compare and contrast the discussion from the employer's perspective and the employee's perspective. Employers can benefit from monitoring employees, on cell phones, computers and other handheld devices, because they can head off mistakes, before it is too late and costly.  It helps them identify security risks and weaknesses in their workforce.  It can also help to eliminate cyberloafing, such as playing games, unnecessary application installation, viewing banned sites, such as pornographic materials, and other time thefts, on the clock, etc. It can also be used to track performance, protect trade secrets, and address security concerns.  While the employee is concerned about possible termination, inappropriate content, how they will be condemned if the items are deemed in appropriate or banned are located on the phone.  Therefore, it is always best to keep professional information on a work phone and personal information on your personal phone.   

          How does this compare to monitoring a traditional office phone? There really isn’t much difference on whether it is a desk phone or cell phone. They can both be monitored fully. However, companies do not always pay the additional cost associated with for the logs on cell phones, unless there are concerns associated with that particular employee.

          Does your position change if it’s a government agency or a company that performs government work? No! There is no expectation of privacy, whether it is an employer owned phone, or a government owned phone. For example: Just this past week, the President banned the use of TikTok on all government employee cell phones, under the International Emergency economic Powers Act, becoming the second country to do so, as it threatens national security.  This is because U.S. user data is stored in the U.S. and backed up in Singapore. TikTok also claims none of its data is subject to Chinese law. This ban was backed by both the U.S. House of Representatives and the Senate.  The U. S. Department of Justice has an open investigation against both TikTok, as well as, the video conferencing application Zoom. Australia is considering the ban. I for one limit applications and knowing all that TikTok (China) is monitoring refuse to use the application on any of my devices.

Sources:

Workplace Privacy and Employee Monitoring | Privacy Rights Clearinghouse. (2019). Retrieved 13 August 2020, from https://privacyrights.org/consumer-guides/workplace-privacy-and-employee-monitoring (Links to an external site.)

Miller, B. (2019). Pros and Cons of Employee Monitoring - HR Daily Advisor. Retrieved 13 August 2020, from https://hrdailyadvisor.blr.com/2019/09/25/pros-and-cons-of-employee-monitoring/ (Links to an external site.)

Midwest New Media, L. (2019). Surveillance at Work - Workplace Fairness. Retrieved 13 August 2020, from https://www.workplacefairness.org/workplace-surveillance#1 (Links to an external site.)

O’Connor v. Ortega, 480 U.S. 709, 716 (U.S. 1987). https://cyber.harvard.edu/privacy/oconnor_v_ortega.htm