Earlier this week, the U.S. Supreme Court agreed to review a case with major implications for employers’ ability to access and review employee electronic communications.  In City of Ontario v. Quon, a police officer alleged that his employer and its telecommunications carrier violated the federal Stored Communications Act (SCA) when as part of an internal investigation, it obtained text messages sent by him using his department-provided mobile telephone.  Despite a clear policy disclaiming any privacy rights to such messages, the Ninth Circuit Court of Appeals concluded that the SCA prohibits employers from obtaining such information.

This case contradicted a number of court decisions that allow employers access to information sent on their own communications systems and equipment, as long as there are adequate disclosures to employees regarding the reservation of this right.  After the Ninth Circuit decision in Quon, some telecommunications carriers began denying corporate customers access to the contents of messages sent on their equipment based upon their fear of being held liable for violation of the SCA.  A Supreme Court decision upholding the Ninth Circuit opinion would require employers to rethink the communications equipment provided to employees, and the policies and procedures used to control use of such equipment.

The Supreme Court will hear oral arguments in the case in the Spring, with a decision likely by the end of the Court’s term in June.