Supreme Court Weighs in On Privacy of Workplace Communications

On June 17, 2010, the United States Supreme Court issued a ruling in the highly-anticipated case of City of Ontario, California v. Quon.  The case concerned a City of Ontario police officer, Mr. Quon, who used a City-issued pager for sending explicit text messages, and whose communications the City discovered when it audited usage in a review of the cost of the pagers.  The Court ruled that the City and the police chief had not violated Mr. Quon’s Fourth Amendment right against unreasonable searches when it reviewed the text messages.  The Court reasoned that the search and audit of the text of Quon’s communications was reasonable in scope.  For a copy of the opinion, click here.

The Quon case has implications for private employers who issue electronic communications devices to employees and reserve the right to monitor employees’ communications.  Nonetheless, the case involves a government employee, an employer that is a state actor, and the scope of the employee’s Fourth Amendment rights.  Given this context, the decision does not directly apply to the conduct of private employees and employers.

Quon and the people with whom he exchanged text messages filed their complaint against the City of Ontario, the Ontario Police Department (OPD), the police chief, and the pager company.  The plaintiffs contended that the City, OPD, and police chief violated their Fourth Amendment Rights and the Stored Communications Act (18 U.S.C. § 2701 et seq.) by obtaining and reviewing the transcript of Quon’s text messages.  They also claimed that the pager company, Arch Wireless, violated the Stored Communications Act by turning over the transcript to the City.

The City made it clear in its Computer Policy that computer communications are monitored, and users should have no expectation of privacy over them.  An internal memo stated that pager text messages would be treated the same way. Nonetheless, the plaintiffs claimed that the officer in charge of the wireless contract told Quon that an audit of the pager would not be necessary if he paid any overages.  Therefore, they asserted that the officer’s statements overrode the policy.

The Court ruled that the review of the message transcript was reasonable, even if it assumed that Quon had a reasonable expectation of privacy.  The Court ruled that the search was motivated by a legitimate work-related purpose, determining whether the level of pager service was appropriate in light of the amount of communications taking place.  Moreover, it was a reasonable and normal search, if the City had been a private employer.  Therefore, the search was reasonable.

The portion of the Court’s ruling that the search would be “regarded as reasonable and normal in the private-employer context” is where the decision has an indirect bearing on the conduct of private employers.  The lesson here is that employers who continue to make it clear in policy, employee training, and reminders that employees have no reasonable expectation of privacy are going to be in the best position to avoid privacy claims following the monitoring of employee communications.  The search inQuon and the Court’s ruling is therefore a persuasive (but not binding) precedent that a similar search by a private employer would not give rise to a privacy claim. 

In response to this decision, employers, and specifically IT, IT Security, and HR, should review acceptable use policies.  They should review these policies to make sure that they cover the types of devices in use.  They should also make sure the policy conforms with what the organization wants to say regarding personal use of electronics, whether the employer will monitor communications, and ultimately whether the employees have a reasonable expectation of privacy or not. 

Stephen Wu

Partner, Cooke Kobrick & Wu LLP

www.ckwlaw.com

swu@ckwlaw.com

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