Privacy and Employee Text Messaging: A New Frontier for the Courts

One of the hottest issues these days is whether an employee has a right of privacy with respect to personal email and/or text messages sent while at work. The use of email and text messaging to communicate with family members and friends is a commonplace occurrence, especially during working hours. The phenomenon is not only due to the relative ease of this mode of communication. It is also a byproduct of the ready availably of convenient hand-held devices such as the I-phone, Blackberry, and similar equipment.

But what about the legal issue? Do employees have a right of privacy when they send personal email or text messages while at work? The answer may well depend on whether the transmission device is owned by the employee or the employer. Everyone seems to agree that if someone uses a personal phone to send or receive a personal, non-work related message, it should be protected; the person’s employer should not be able to inquire as to what was said or typed.

But what if the employer furnishes a computer, pager or telephone to the employee for company use? And what if the employer follows up with a policy that says “You should have no expectation of privacy with respect to the use of company-furnished equipment. We retain the right to audit the use of such equipment including the right to review the content of messages sent or received.”

In such a case, the employer may well have a right to view (and review) text messages and emails sent or received via the company’s device. Indeed, a fact pattern close to this was at issue before the U.S. Supreme Court in City of Ontario v. Quon. In that case, the Ontario Police Department issued pagers to its officers. The department had a preexisting “computer policy” that advised employees that “the City reserves the right to monitor and log all network activity including email and Internet use, with or without notice. Users should have no expectation of privacy or confidentiality when using these resources.”

The policy did not apply on its face to text messaging, but the department made clear to its employees that its computer policy would apply to the pagers and to text messaging. Sergeant Steve Quon was issued on of the pagers and he often when over the monthly character limit. When confronted about his over-use of the pager, Quon agreed to pay the “overage” charges.

The problem of excess use continued (and Quon continued to pay the excess charges) but at some point, a supervisor decided to audit Quon’s pager and read the text messages he had send and received during work hours (messages sent while Quon was off duty were not reviewed). The reviewed messages included substantial personal content, including sex-related messages between Quon (who was married) and a girlfriend. Clearly, Quon’s pager was not being used exclusively for “work-related” communication. Quon was disciplined.

But the matter did not end there, for Sergeant Quon sued, contending that the department had violated his Fourth Amendment right to be free of an “unreasonable search, as well as the Stored Communications Act (27 U.S.C. §§ 2701, et seq.) and California law.

At trial, the district court concluded that Quon has a reasonable expectation of privacy in the content of his text messages. A jury then determined that the audit of Quon’s text messaging was reasonable – it was done to determine the efficacy of the character limits in the monthly plan purchased by the department.

The Ninth Circuit reversed. The appellate panel agreed that Quon had a reasonable expectation of privacy, but differed with the trial court that the search of the messages was reasonable in scope.

Enter the U.S. Supreme Court, which agreed to decide the issue under the Fourth Amendment. In an opinion that expressed the court’s reticence to set broad rules to govern privacy in the Internet Age the court affirmed the trial court’s conclusion. It assumed (without formally deciding) that Sergeant Quon had a reasonable expectation of privacy in his text messages. The court also assumed the department's audit of Quon’s messages constituted a “search” under the Fourth Amendment. In addition, the court agreed that “the principles applicable to a government employer’s search of an employee’s physical office apply with at least the same force when the employer intrudes on the employee’s privacy in the electronic sphere.”

The court then proceeded to rule that the search was reasonable at its inception, and that it was not “excessively intrusive.” Quon had reason to know that the department might review pager use; he knew of the departmental policy on computer use and its applicability to the pagers, despite what one superior officer might have told him about “not wanting to audit him” if he paid the overage charges. And the search was limited to messages sent while on duty. The court noted that an employer had pertinent reasons to review “on duty” conduct – to assure employees were acting efficiently and to monitor the effectiveness of the monthly texting plan it had purchased for employees to use. To quote the court: “Because the search was motivated by a legitimate work-related purpose, and because it was not excessive in scope, the search was reasonable . . . .” (It should be noted that the Supreme Court decided only the Fourth Amendment claim; it refused to review the Ninth Circuit ruling that the City of Ontario had violated the Stored Communications Act.)

The use of electronic equipment in the workplace will continue to raise difficult questions of privacy. At Slote & Links, this is one of our areas of specialty and we frequently advise both employees and employers – both public and private – on these issues.

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