Q. We recently received a complaint that one of our sales representatives had sent false emails and texts about one customer to another. We determined that the emails and texts have been sent fro–m the cellphone that we provide to the sales representative. We asked the service provider to send us copies of the emails and text messages. The service provider refused our request. Why can’t we get that information?
A. Under the federal Stored Communications Act and Chapter 626A of Minnesota statutes, electronic communications providers cannot disclose the content of the messages stored in their servers to the subscriber of the telephone service. Only the sender, addressee or recipient may access that content.
As a result, employers that provide and pay for cellphones and cellphone service are often prevented from gaining access to the records. Fortunately, there is a solution to this problem—but it requires pre-emptive action by the employer.
Under the statutes, the sender, addressee or recipient may grant consent allowing others to access the data. Employers that want the right to access cellphone or smartphone data should obtain specific written consent from employees, including permission to access the content itself and the logs concerning text messages, calls, emails, photos, video and search history.
Consent may be hard to obtain once an investigation is under way. Therefore, you should secure consent well in advance of any need to access the data.
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