I expect this to be one of the most contentious issues to face records managers, privacy experts, legislators, and the courts over the next several years.

In general, most organizations in the US (Canada tends to protect personal privacy more explicitly, so this is an interesting ruling) would consider any electronically stored information (ESI) in their environment as fair game for investigation, discovery, etc. However, most organizations would clearly differentiate between retention of records of the organization and records that do not belong to the organization. So it tends to be somewhat confusing when "reasonable personal use" bumps up against organizational needs for investigations and litigation. In this case (and I haven't read it, plus I am neither an American lawyer nor a Canadian lawyer), I suspect that it may also have to do with the perceived utilization of public funds in support of private interests, so that may have a bearing that differentiates this from other matters. My thinking here is that if someone is on the public payroll and the public body has given the employee permission to
 conduct volunteer activities at work (sending email to prospective members of ARMA or composing an ARMA chapter's newsletter, to draw a couple of instances many of us would be familiar with), then the public has a right to know how their tax monies are being spent and the public should be able to determine if these activities are appropriate. I would expect that professional organization work would not be an issue, but certain political, religious, or social causes may be problematic when "supported" by public money.

The Quon vs. Arch Wireless case is an outlier in the US. Even though the case involved communications via publicly paid devices, the courts found that the employer was unreasonable in obtaining copies of the communications. The public records aspect of this case was not considered and being the 9th Circuit, it is one of those "People's Republic of  California things" (to quote some cynics). I think the 9th Circuit's ruling left a lot to be desired, but it is the 9th Circuit and I'm not a lawyer, so what I think is irrelevant. On the other hand, in the cases involving the former Mayor of Detroit and his text messages, the courts in Michigan held them to be public records. So the court system is all over the place and that is relative to public records. Where these sorts of issues land for non-public enterprises remains to be seen.

My sense is that the employer's rights trump the employee's rights when the employee is using the employer's equipment and / or facilities, within limits. The employer may not utilize information obtained to discriminate against the employee, but the employee should not have any expectation that the content created or transmitted via the employer's equipment of facilities is private, within the constraints of other existing laws. In other words, if you are communicating with a health care provider, there are protections for that. If you are communicating with an attorney, there are protections for that. On the other hand, if you are communicating with your friend or an ARMA colleague, running a Herbalife business on the side, or writing to the Records Management Listserve, the company has a right to examine that information. Once the employee is using his or her own equipment and facilities, the employer's rights are very limited and the employee should
 have an expectation of privacy with regard to ESI, absent court involvement or the employee's waiver of privacy. And I will emphasize "stored information" here. What you post on the Internet is fair game.

The real problem comes in when the lines between work and personal life really blur. Is the content that a public official writes on Blogspot a public record? Does it matter when he or she writes the post or with what computer?  Is a Twitter "tweet" a record? If an employee uses their home computer to conduct business, is the home computer subject to discovery? What about the contents of a cell phone? What if the cell phone sends and receives work-related email? What if an employee uses their Gmail account for business purposes? What if the employee downloads work email to his or her home computer and co-mingles it within Outlook?

My personal opinion (and approach) is to keep personal stuff separate from business stuff -- and understand that when I use the company's equipment or facilities, I have no expectation of privacy.



 Patrick Cunningham, CRM
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"Perpetual optimism is a force multiplier." 
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