3 Privacy Tips for a Software or SAAS Company (Courtesy of the US Supreme Court in 2010)

June 29, 2010

Well, while the US Supreme Court in its decision in the case of City of Ontario vs. Quon (June 17, 2010) — an employee privacy expectation case (actually, a sexting case regarding a SWAT officer) — intentionally tried not to provide a lot of specific guidance, there are some take-aways.  

1) Computer/Technology Usage Policies Matter. The US Supreme Court seemed to make a big deal about the fact that the computer policy in this situation was clearly communicated, as were changes to the policy (i.e. its applicability to text messages). Note to Self: Create policy and make sure we communicate material changes to all employees.

2) Intent of the Search Matters. In this instance, the employer initially performed the search to see if there was excessive use by the employee of the employer-owned device (pager), as the employee was footing part of the bill. The court seemed to like the fact that the initial intent was related to the proper allocation of expenses between the employee and the government, so why the search is being performed is a big deal. Note to Self: Make sure that we have the right people involved in deciding on when and how to perform any type of employee data search (i.e. so that the search is performed for the right reasons and in the right way). 
3) Managers Shouldn’t Try to Change Written Company Policies. While you probably knew the general principle that managers should not change written policies — and most written policies actually state this — this was a huge issue in the case (in fact there would not have been a case if it were not for the allegation that the supervisor changed the written policy). At least the Supremes got this right, as they did not take the bait that the supervisor changed the policy. Note to Self: Remind HR to tell all managers that if there is a question about our written policies, they should contact HR and should not try to interpret the policy themselves. 

Look, I can go into a lot more detail (trust me) and give you a much longer list, but if you can remember these 3 takeaways you are doing great. Give yourself some credit, as this is not one of the most exciting topics for any business looking for expansion capital or business venture capital. However, when it comes to technology and law, any top venture capital firm will tell you that you need to know at least the basics of the US Supreme Court’s view of employee privacy in 2010. 

President and Shareholder

<strong>Jeremy Aber</strong> consults OpenView portfolio companies on legal and contract matters. Jeremy runs his own IT focused law firm, the <a href="http://www.aberlawfirm.com/">Aber Law Firm</a>, and has over 18 years experience in technology and corporate law.