Today, the Supreme Court issued a unanimous decision in City of Ontario v. Quon —the first Supreme Court case directly addressing public employees' privacy rights with respect to communications via employer-issued communications devices such as pagers, cell phones and smart phones. In the 9-0 decision (with two concurring opinions), the Court held that a California city's review of two months' worth of text messages on a police officer's city-issued pager was reasonable where the city was concerned that, among other things, it might be paying for employees' personal use of those pagers. Notably, the Court took pains to limit its holding to the particular facts of the case, making clear that it wished to avoid defining the contours of employee privacy rights on new technology before the role of the technology in the workplace and society become clear.
The case arose when officials for the City of Ontario, California noticed that an officer on the City's SWAT team, Jeff Quon, was repeatedly exceeding the character limit on his work-issued pager, leading to overage charges. An audit of the officer's text messages uncovered hundreds of personal messages, some of which were of a sexual nature. As we described in a previous FR Alert, a three-judge panel of the Ninth Circuit Court of Appeals had held that the City's audit violated Quon's Fourth Amendment rights and those of the third parties who had sent him text messages.
Although the Supreme Court was asked to address a number of potentially far-reaching questions about the scope of employees' Fourth Amendment rights against unreasonable searches and seizures on work-issued communications devices, it refused to do so. Instead, the Court looked at one question: Was this particular employer's review of text messages a reasonable search under the Fourth Amendment? The Court noted that regardless of the employee's expectation of privacy, an employer's search of an employee's property at work is reasonable if it is a non-investigatory, work-related search or a search incident to an investigation of work-related misconduct, and if the search is "justified at its inception" and "reasonable in scope." Here, because the City had a legitimate interest in ensuring that employees were not paying for work-related messaging expenses and that the City was not paying for personal messages, the Court found that the search was justified at its inception. Moreover, the Court found that the search was reasonable in scope, for three reasons. First, it was an "efficient and expedient" way to reach the City's goal. Second, it was not "excessively intrusive," since it covered only two months worth of messages and did not include messages sent or received during non-work hours. Third, because Quon was a SWAT team member, he did not have much—if any—expectation in privacy in a work-issued pager, because he could reasonably expect that his work-related communications might be subject to scrutiny.
The Court declined to specifically answer perhaps the most interesting question for employers from the case below: Does a public employee have any expectation of privacy in a work-issued pager? The issue was significant in this case because although the City had a formal policy informing employees that they did not have any expectation of privacy in their e-mail or work-issued pagers, Quon claimed that one of his supervisors overrode that policy when he told Quon that his text messages would not be audited so long as Quon paid all overage fees accrued on the pager. Notably, although the Court declined to specifically address the issue, the majority opinion included significant discussion of and seeming sensitivity to the rights of employees to some privacy in their electronic communications. Justice Scalia, in a concurring opinion, warned that many employees may grasp onto the Court's discussion of privacy to attempt to push back on employer's search rights in future cases.
While the Court's opinion in Quon leaves many important questions unresolved, the practical lessons for employers are clear. First, it is vital for all employers, both public and private, to have a comprehensive electronic communications policy clearly placing employees on notice that communications over employer-provided systems and devices are not private and may be reviewed. Second, employers should undertake searches of employee communications only for legitimate, work-related reasons. Finally, employers should ensure that the scope of any search is reasonable in light of the underlying purpose.
www.franczek.comThe content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.