Employer Can Access Employee’s Cell Phone under the Stored Communications Act

In December, the Fifth Circuit Court of Appeals in Garcia v. City of Laredo, et al. found that an employer who accessed its employee’s cell phone without her permission did not violate the Stored Communications Act.

The employer, a city police department, terminated the employee after it discovered images and text messages on her cell phone that violated the departmental rules. The police department investigators actually downloaded a video and photographs from the employee’s cell phone before calling her to a disciplinary meeting at which she was fired.  The employee sued the City of Laredo claiming that all the text and data stored on her personal cell phone were protected by the Stored Communications Act and the employer violated it when it accessed the data without her permission.

The Fifth Circuit Court of Appeals, however, found that the Act, which protects electronic data, only covers information stored by an electronic communication service provider, and does not reach information stored on a cell phone. The Fifth Circuit noted that this interpretation was consistent with other courts, who had previously held that the Act applied to service providers such as phone companies and Internet or email providers, but did not apply to an individual’s computer, laptop or mobile device.

WHAT DOES THIS MEAN?  This means that while an employer cannot access your Facebook account, for example, or your cell phone records without your permission, the information that you choose to keep on your cell phone or an iPad is fair game (at least in Texas).

The moral of the story is: Don’t leave your phones or iPads lying around at work unless you want your employer to see your personal information.