Supreme Court to Hear Privacy Case Case Regarding Employer’s Review of Text Messages

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The Supreme Court announced that it will review a decision from the 9th Circuit Court of Appeals (known as being the most liberal appellate court in the federal system) about an employer’s right to review text messages on an employer-provided texting device. The case is Quon v. Arch Wireless Operating Co., Inc. and involves police officers of the City of Ontario, California. Because the case involves a public employer, the Supreme Court decision could have limited reach, at least to employees working for private companies. Unlike what many people believe, the 4th Amendment protection against unreasonable searches and seizures (and in fact all the constitutional protections), which is the issue in the Quon case, protects only against state actions, not against the actions of private individuals or organizations.

The Quon case deals with these police officers who were issued pagers for work purposes. Although the city had a formal policy that stated that computers, cell phone, pagers and other electronic devices were to be used only for work-related purposes, that policy had been replaced by an informal one stated by the police officers’ supervisor. He told the officers that they could use the pagers also for personal use, and that they had to pay for the pager costs only when they exceeded the monthly 25,000 character limit. The plainitff, Quon, exceeded the limit 3 or 4 times and paid the excess charge.

Things changed when the department wanted to conduct an audit to determine whether or not the officers were exceeding the monthly character limit, and by how much. However, instead of just auditing the number of characters, they choose to audit the content of the messages as well. What did they find? In addition to the work-related messages sent from Quon’s pager, they also found sexually explicit messages that had been sent to his fiance. The issue before the court was whether that search of the content of the messages was unreasonable and thus in violation of the 4th Amendment.

The court of appeals held that it was unreasonable. Quon, and the other officers had a reasonable expectation of privacy in the content of the messages that they sent from their pages, despite the fact that there were work-issued. The informal policy that had been established played a key role in determining that there was this expectation of privacy. Employers (including private ones) have been found to have waived a policy that gave them the right to access employees’ emails when they did not actively enforce the policy, or when there was no policy at all. The court also examined the scope of the search and concluded that although it was reasonable at first (when they examined the number of characters), it became unreasonable when they read the content of the messages. The city of Ontario appealed and the Supreme Court will hear the case during this year’s calendar.

The case could have far-reaching implications on employee privacy in the workplace. It will largely depend on how narrowly the Court constructs its ruling. It likely will limit it to public employers, leaving open the question of whether private employees have the same expectations of privacy. I agree with the 9th Circuit holding and agree with the emphasis on the informal policy created by the supervisor, who told his employees that they could use the pagers for personal purposes and that they wouldn’t look at the messages. That shows the importance of reviewing policy and procedures with supervisors and managers, as their words and actions can bind the company and organization, whether you like it or not.

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