IP/Internet/New Media Blog

By Galen Gentry

In City of Ontario, California v. Quon. The court held that a public employer’s examination of an employee’s personal text messages on a government-issued pager did not violate the Fourth Amendment. Justice Kennedy’s opinion for the Court remarked that a review of messages on an employer-provided device would similarly be regarded as “reasonable and normal in the private-employer context.”

A police sergeant was using a work-issued pager to send sexually explicit texts. The Supreme Court ruled Thursday that under the circumstances the police department was entitled to read his messages. In a unanimous decision, the high court said that even if police Sgt. Jeff Quon had an expectation that his pager messages would remain private, a police department audit of his messages was nonetheless reasonable.

“Because the search was motivated by a legitimate work-related purpose, and because it was not excessive in scope, the search was reasonable,” Justice Anthony Kennedy wrote for the court.

Quon’s employer asked its wireless service provider for details about the text messages sent and received by the city’s police officers, when their texts regularly exceeded the monthly limit for which the city had contracted. Quon was disciplined for violating police department rules when the city discovered that he sent numerous personal messages. He and the individuals with whom he communicated and who communicated with him sued the city, arguing that the city engaged in an unreasonable search in violation of the Fourth Amendment of the US Constitution, the privacy clause found in Article I, section 1 of the California constitution, and also the federal Stored Communications Act (SCA).

This is good news for employers and the case gives them guidance on the issue of employee privacy in this context:

Employers should establish the level of privacy expectations with a written policy that covers all the gizmos the company uses–telephones, cellular phone, sms text, and email.

Employers should avoid reviewing the content of sms messages, or emails or asking their service providers to do so, unless the employer has a clear work-related purpose such as an investigation of suspected wrongdoing or a non-investigative financial or administrative objective.

Content review should be done in a manner that limits privacy intrusions. The Quon decision states that this does not mean “least intrusive search practicable” but instead it must be a search reasonably limited to the employer’s legitimate, work related objectives.

A reasonable review of employee communications with realistic work related objectives can also serve as a defense against privacy claims by non-employees who communicated with the employee.

By Galen Gentry

Yesterday, Mayor Villaraigosa signed a measure to cut business taxes for internet based firms. Last year internet firms were reclassified from multimedia to business and professions. It’s an important distinction because the former pay a city tax rate of $1.01 of gross receipts and the latter pay $5.07 (yes, fellow attorneys you are unfortunately in the $5.07 category). The change was approved without dissent by the city council. The rate change is retroactive. The fact that it is retroactive will cost the city at least $3.4 Million in revenue according to an article today’s Los Angeles Times Business Section by Phil Willon.

The mayor and the city council were clear as to the reasons for the change of heart–they believe internet based companies are easy to move and that the drastic increase in city tax would result in an exodus which would ulitmately cost Los Angeles more revenue in the long run.

By Galen Gentry

Aided By Exciting Competition, Higher Than Expected TV Ratings, And A Hockey Game For The Ages NBC’s Experiment In Social Media Will Pay A Dividend

NBC did a great job on www.nbcolympics.com. There was lots of video; it downloaded easily, and it was not exclusively of and about U.S. athletes.  NBC had tweets and blogs as a page on its site, allowing good access to the personal if not always interesting blogs and tweets of those involved in the games.

NBC also did a good job using its local news affiliates.  In addition to making NBC’s content available the affiliates focused on connections to local athletes.  NBC Los Angeles had articles and video of on the numerous athletes in the games with California connections  including skater Mirai Nagasu and ubersnowboarder Shawn White.  NBC Los Angeles had the tweets of some local athletes as well.

In my February 16th post I noted that NBC was making a concerted and expensive effort to measure the use of different media platforms at the Vancouver games so that ultimately it and advertisers could make meaningful decisions on how to spend money in emerging media. NBC hopes to determine what media the public used—mobile devices, computers and how they used it.  Monetizing new media content is the Holy Grail.  The 2010 Winter Olympic games will give NBC and its advertising clients lots of data to crunch.

 There was plenty of buzz, the television ratings were higher than expected,  and the both premier and secondary events were filled with excitement. Did NBC’s push into social media work?  Probably.

By Galen Gentry

NBC believes that the Olympic Games are a giant petri dish for new media consumption and the company is making every effort to effectively measure and evaluate new media trends and use.  Monetizing new media is the mantra of the world’s biggest corporations.  All of whom have serious money to spend in advertising and are involved to greater and lesser degrees in different media platforms.  The problem is that there are no standards by which to measure the audience of the most of the outlets.

Advertisers want  numbers, but collecting and quantifying the data on emerging media use is in its infancy.  NBC has hired a host of market research companies and  will release  among other things a daily total audience measurement which will count  how many people watched the Olympics on the various media platforms.  Sample size, the means of measurement and other issues will affect how much faith advertisers put in the numbers, but professionals involved in the legal and marketing aspects of  emerging media are very interested in NBC’s “daily total audience measurement.”