Pleasanton Office
and Anthony De Marco, Partner
Irvine Office
The adoption of acceptable use policies to establish the nature and limits of employee and student access to and use of computer systems is by now a common practice. Once such policies are established, however, districts and county offices of education sometimes fail to review them to ensure they are current. In today’s rapidly changing technology environment, these policies can quickly become outdated in the face of new technologies and means of communication, the most recent examples including social networking, micro-blogging, and cloud computing. It is important that acceptable use policies be kept current to address the impacts of new technologies.
The importance of thoughtful, current policies has been demonstrated in the courts, which continue to grapple with technology-related issues in the employment relationship on a regular basis. For example, in City of Ontario, Cal. v. Quon (2010) --- U.S. ----, 130 S.Ct. 2619 [see AALRR Alert here], one of the key factors in determining whether the employee had a right to privacy in text messages sent over an employer-owned cell phone was that the employer’s acceptable use policy established that such communications were not private. Similarly, in Holmes v. Petrovich Development Company (2011) 191 Cal.App.4th 1047 [AALRR Alert here], the court concluded that ordinarily privileged communications between an employee and her attorney were not privileged because the employer’s use policy explicitly establishing to the contrary. Appropriate acceptable use policies can, therefore, be key documents when legal issues arise.
In the public education environment, districts and county offices of education should also ensure that their student acceptable use policies are regularly updated. Entities should determine not only whether there should be separate policies for employees and students, but whether different use policies for different grade/age levels are appropriate. Students at lower grades are often capable of only complying with a more basic use policy, whereas older students can, and should, be required to adhere to more detailed and sophisticated acceptable use policies.
Perhaps no area of education law is more dynamic than issues related to the use of technology by employees and students. Employers and educators should, therefore, provide for a regular process in which they review and update their acceptable use policies to reflect the rapidly evolving pace of technology.
