A 2011 report for the
Pew Research Center's Internet and American Life Project
found that Americans between the ages of 18 and 24 exchanged on
average nearly 110 text messages on a normal day and that an
average of 109.5 messages on a normal day with a median user
exchanging approximately 50 text messages a month. Even those in an
older age group – 30 to 49 – were texting in
significant numbers at an average of 27 texts per day.
Text messages are not confined to personal use, although that is
likely still the most pervasive use of text messaging. Close-knit
team members may use text messages to convey brief information or
simply to prompt a call or attention to email. Text messages may
also be used more nefariously as a means to communicate information
in an attempt to avoid detection by an employer, particularly when
sent and received from employee-owned mobile phones.
In the public sector environment, there may be a duty to produce
text messages in response to access to information requests if
those text messages are under the "control" of a public
institution subject to access to information legislation. Access to
information legislation typically defines "records"
broadly in a technologically neutral way. The issue, however, is
whether text messages are under the "control" of the
institution. The answer is straightforward with respect to
employer-owned mobile devices. However, the answer is more complex
when dealing with employee-owned devices.
>The Supreme Court of Canada has endorsed an understanding
of "control" that would include some power of direction
over the record. Whether a policy on employee text messaging would
be sufficient to establish control is uncertain.
In response to the possibility that records are falling outside
of the access to information system,
the Information Commissioner of Canada recently initiated an
investigation into the use of text messages and similar forms
of communication in the Federal public sector. The Commissioner
noted that there is no government-wide policy on text messaging.
Her investigation appears, however, to be limited to
government-issued wireless devices.
In the private sector, the issue is equally complex. Leaving
aside privacy issues relating to non-work-related texts on
employer-owned devices, it is impractical for an employer to
control the use of text messaging on personal devices. What is
clear, however, is that inappropriate use of text messaging may
pose a significant record-keeping and compliance challenge for
organizations. My colleagues have posted about
harassment complaints involving text messages sent and
perhaps not sent. More broadly, however, text messages pose
challenges for managing communications regarding matters that may
be highly regulated or potentially litigious. If a regulatory
investigation is commenced or litigation reasonably anticipated,
the organization may need to take steps to direct employees to
preserve relevant text messages.
There is no easy answer to the issue of text messages. However,
like Canada's Information Commissioner, it may be time to
consider whether your organization's policy and employee
training is up to the challenge.
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