Today, the U.S. Supreme Court held that a public employer did not violate an employee’s constitutional privacy rights by searching his personal (and often sexually explicit) text messages that were sent and received on his employer-issued pager.
The Backstory
The City of Ontario, California, issued pagers that could send and receive text messages to Ontario Police Department (OPD) SWAT Team members, including Jeff Quon. When the OPD was charged with overage text message fees, it looked at the transcripts of text messages sent during a two-month period by Quon and another employee who had exceeded the text allowance. Much to the OPD’s surprise, it discovered a plethora of messages on Quon’s pager that were not work-related, including some that were sexually explicit. The matter was referred to OPD’s internal affairs division, and Quon was allegedly disciplined.
Quon sued, alleging that the city violated his privacy rights under the Fourth Amendment. (He was also joined in the suit by individuals who had exchanged text messages with him during the applicable period of time, including his then-wife, his girlfriend (who was another OPD employee), and another SWAT coworker.) Although the district court ruled that his rights weren’t violated, the Ninth U.S. Circuit Court of Appeals reversed, holding that he had a reasonable expectation of privacy in his text messages and that the OPD’s search “was not reasonable in scope.”
The Supreme Court’s Take
The Supreme Court disagreed with the Ninth Circuit, holding that the search was reasonable and permissible because it was motivated by a legitimate work-related purpose and wasn’t excessive in scope. Although the case involved a public employer, the Court related the situation to private employers as well by noting, “For these same reasons — that the employer had a legitimate reason for the search, and that the search was not excessively intrusive in light of that justification — the Court also concludes that the search would be ‘regarded as reasonable and normal in the private-employer context.’”
However, the Court also made certain to stress that not a lot should be read into this one decision since it was decided on narrow grounds. The Court decided to take a narrow approach to the case because it was wary of a broad holding’s impact on employees’ expectations of privacy when using employer-provided communication devices. More specifically, the Court noted in its opinion that “a broad holding concerning employees’ privacy expectations vis-à-vis employer-provided technological equipment might have implications for future cases that cannot be predicted.”
Importance of Policies
One thing employers should take away from this case is the importance of privacy policies. The OPD had a “Computer Usage, Internet and E-Mail Policy” that specified that employees had no expectation of privacy or confidentiality when using computers, e-mail, or the Internet. The OPD had clarified that the policy also applied to pager text messages. However, in his suit, Quon contended that he had an expectation of privacy with the text messages because a supervisor informally told him that they would be private if he paid the overage charges himself. This situation illustrates the need for employers to not only have privacy policies but also make sure supervisors are uniformly enforcing them.
Learn how far can you go to monitor e-mails and texts — without invading an employee’s privacy — with the new audio conference on CD “Monitoring Employee E-Mail, Texting, and Facebook: What’s Off-Limits?” For more information, call (800) 274-6774.