Employers Can Snoop Through Your Cell Phone

Keyhole on a cell phone and an eye peering through

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It’s hard to imagine getting fired based on text messages or videos on your own personal cell phone, but according to one federal appeals court, it’s absolutely legal – at least under one federal law designed to protect electronic transmissions.

The 5th U.S. Circuit Court of Appeals on Dec. 12 said the Stored Communications Act (SCA) did not protect a city employee from her employer using the contents of her cell phone to fire her. 

 

Phone Taken by Snooping Co-Worker

Fannie Garcia was a police dispatcher for the City of Laredo in Texas, according to the opinion. The wife of a police officer took Garcia’s phone from her unlocked locker at work in 2008 and shared the contents – including text messages, photos, and a video – with Garcia’s managers.

The opinion does not mention why the officer’s wife took Garcia’s phone. As John Litchfield, an attorney with Foley & Lardner, wrote in a recent blog post, “the court leaves to the reader’s colorful imagination the motive behind the commandeering of the phone.”

Garcia was fired because her phone’s contents revealed that she had violated police department rules. Which rules did she violate? That’s also a well-kept secret: The infractions are never revealed in the court documents. Garcia sued the city under various state laws as well as the federal SCA. Only the SCA claim was considered on this appeal, and the 5th Circuit sent Garcia packing.

 

SCA’s Limited Use

“Congress enacted the SCA to protect potential intrusions of individual privacy that the Fourth Amendment did not otherwise cover,” notes Litchfield. “It prohibits the unauthorized access to a facility through which wire and electronic communications are kept in temporary storage, or as back-up storage.”

The reason Garcia’s claim failed lies in the court’s interpretation of the word “facility.” Litchfield explains that a cell phone is not a “facility” operated by a service provider (such as an Internet service provider or a phone company). Instead, the judges viewed a cell phone as a tool that allows a user to access electronic communications services (like email, text messaging and phone service). In the court’s opinion, the phone doesn’t qualify as a “storage device,” so anything found on it isn’t protected under the SCA.

 

Antiquated Law

“The Fifth Circuit in Garcia recognized that there are ‘providers’ of electronic communication services as well as ‘users’ of those services, but the SCA’s protection only extends to service providers,” writes Steven Puiszis, a lawyer with Hinshaw & Culbertson, on his firm’s blog

Just because a cell phone “enables” use of such a service does not mean it “provides” it, said the court; and thus the SCA failed Garcia. In other words, company responsible for your cell phone service or email account is protected. You, on the other hand, are not.

It seems strange that a statute enacted to protect individual privacy would fail to do so – especially in so clear a case. But as we’ve noted before, the antiquity of the SCA is well-known. 

A case out of South Carolina last fall set up a circuit-split over interpretation of the SCA that might one day attract the attention of the Supreme Court.  “The U.S. Supreme Court may ultimately wind up weighing in on what protections stored emails have under the SCA,” wrote David Navetta and Andrew L. Hoffman, lawyers with InfoLawGroup LLP, about the South Carolina case.

“Alternatively, Congress may step in and amend the SCA for modern times, and many have called for that,” said Navetta and Hoffman. “Until then, the legal protection – or lack thereof – for stored communications will remain murky.”

 

Employers Beware

Ultimately, employers can do what they want with information they find on employees’ cell phones. But how they access that information is the key, say lawyers.

“If employers inadvertently acquire electronic communications from employees’ cell phones, there are no criminal penalties under the SCA,” points out Litchfield. In Garcia’s case, her employer didn’t lift her cell phone from her locker — a co-worker did — so they were free to use the information presented to them.

“However,” he adds, “as tempting as it may be, employers should not actively snoop through an employee’s personal devices, as it will likely result in civil damages for violations of various privacy laws, including various state common laws or statutes.”

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