Justices Debate Privacy in the Workplace

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This past Monday, the US Supreme Court heard oral arguments in a case that could have far-reaching implications for privacy in the workplace and specifically, for the privacy of electronic messages sent by employees while at work from their employers devices (pages, cell phones, computers). The case, City of Ontario v. Quon, deals with a California police officer who had sent sexually explicit message to his wife and mistress from him work pager. When his employer audited his text use and read the messages, he claimed that it was a violation of his 4th amendment right against unreasonable searches and seizures. Although the police department had told its employees that they had no expectation of privacy in their electronic communications sent while at work, a a police lieutenant had informally changed that policy, telling the officers that those who paid for messages over a monthly maximum would not have their records inspected.

In the oral argument, it was clear that there is no easy answer in defining where employees’ right to privacy ends in the workplace. Justice Breyer commented that a certain amount of personal texting was to be expected, while Justice Stevens and Kennedy showed perhaps a bias towards limited privacy in this case because the text messages of police officers could be subject to disclosure in a lawsuit. All justices questioned the expectation of privacy of the people that Sargent Quan, the plaintiff, had communicated with.

Commentators and experts expect a limited ruling that might provide little guidance to government employers and perhaps none to private ones. Even without the final ruling, one lesson can be learned: train supervisors and managers not to orally modify any company policy or procedure, such as the one in this case that dealt with electronic communications. It is also important to realize that any expectation of privacy and violation of the 4th Amendment is limited to public employers and public employees. Private employees have no constitutional rights against unreasonable searches and seizures in the workplace.

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