Most employers provide their employees with all sorts of technology, including Blackberries, Internet access, and email accounts.  And all of this technology typically flows through the employer’s network and servers.

Because this technology is the employer’s property, it’s reasonable to assume that the employer can monitor and review employees’ emails, text messages, IMs, etc., sent and received by employees who use this employer-provided technology, right?

Well, maybe–and then again, maybe not.

On April 19, the US Supreme Court heard arguments in City of Ontario v. Quon, regarding whether a California city violated a police officer’s right to privacy when it read non-work related text messages the officer had sent using his police department-issued pager. Although the Court has yet to rule, the Justices seemed skeptical that an employee should reasonably expect such messages to remain private.

But in another recent case, Stengart v. Loving Care, the New Jersey Supreme Court ruled that an employer wrongfully accessed an employee’s emails between her and her private attorney, even though they were sent and received over an employer-provided laptop. In that case, the Court relied on the fact that the emails the employee sent and received went through her non-employer, password-protected Yahoo! email account.

For now at least, the bottom line appears to be that, generally speaking, an employer may access employee communications made using employer-provided technology, but employee communications made through a password-protected third-party email account, even if made on a company communication device, may be off-limits. Keep an eye out for the Supreme Court’s decision in Quon, as it will hopefully provide definitive guidance on this issue.

Suffice it to say that employers who wish to assert the right to review an employee’s personal communications should consult with counsel to ensure that their policies on such issues are unambiguous.