An Administrator's Guide to California Private School Law

Chapter 10 - Privacy Rights Of Students And Employees

nexus (i.e., the unlawfully interception of an oral communication or the unlawful interception under color of state or federal law) for Section 2511 to be violated. 1751 The ECPA also created the Stored Communications Act (“SCA”), which prohibits intentional and unauthorized access of a facility providing electronic communication service to obtain “access to a wire or electronic communication while it is in electronic storage in such system. 1752 ” The SCA also prevents “providers” of communication services from divulging private communications to certain entities and/or individuals. 1753 The SCA provides privacy protection to communications held by two types of providers: electronic communication service (“ECS”) and providers of remote computing service (“RCS”). An ECS provides its clients with wire or electronic communications services, such as e-mail. The Stored Communications Act prohibits an ECS from releasing the contents of a communication in electronic storage except to the sender or recipient of the communication. On the other hand, an RCS provides its clients with computer storage or processing services “by means of an electronic communications system.” For example, subscribers, such as banks or hospitals, may contract with an RCS for computer processing or storage of records. While the information is communicated electronically for storage or processing to an RCS, providing communications services is not the main purpose of an RCS. Under the Stored Communications Act, an RCS may release the contents of a communication with the lawful consent of a subscriber. Thus, for example, if a school uses an RCS to store certain employee files, the school as the subscriber has the right to access those employee files without the consent of the employee. In Quon v. Arch Wireless Operating Co., Inc. 1754 , the Ninth Circuit ruled that the employer’s text message provider, Arch Wireless, violated the Federal Stored Communications Act, finding that it was an ECS, and thus, it could not release transcripts of employee text messages, sent and received via employer issued pagers, without the lawful consent of either the sender or the recipient of the communications. While the Supreme Court reversed other aspects of the Ninth Circuit’s decision in Quon v. Arch Wireless Operating Co., it did not grant review of the ruling that Arch Wireless violated the SCA. Therefore, that ruling remains good law. 1755 Generally, employers route and store their e-mail on their own servers and equipment. However, text messages, which are communicated via cellular telephones or pagers, are routed through a wireless communications provider (an ECS) which often only temporarily stores the record of the communication. If a school wishes to avoid the uncertainties that arise when messages, including e-mail, are routed through the network of an outside communication service provider, the school may choose to limit its communication resources to those that are routed through the school’s server and equipment. For example, certain cellular telephones have software that allows the employer to route all communications through its network. Additionally, in light of the ruling in Quon v. Arch Wireless , companies in the business of providing electronic communications services will likely require a specific waiver from the end

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 393