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Supreme Court Allows Public Employer to Review Text Messages Sent on Supplied Device

    Client Alerts
  • June 25, 2010

Modern employee handbooks universally include electronic communications policies that attempt to set forth the employer's right to monitor communications made using company e-mail, Internet and other systems. These policies are provided, in part, to remove any expectations of privacy by employees to the contents of these communications. Last week, the U.S. Supreme Court issued a narrow decision allowing such reviews in the context of a public employee complaining of an illegal search.

In City of Ontario v. Quon, the plaintiff was a police officer who was issued a paging device capable of sending and receiving text messages. The City's contract with the wireless carrier imposed charges once a certain number of monthly text messages was exceeded. Officers were required to pay out of pocket for excess charges. The Chief of Police decided to review the department's texts to determine whether these excesses were being generated by personal messages sent by the officers, or whether the wireless plan was inadequate to meet the officers' business needs.

When reviewing the messages, the department discovered that the plaintiff had been sending and receiving sexually oriented text messages while on duty. After being disciplined for such conduct, the plaintiff sued, alleging that the review of the contents of his messages constituted an illegal search and seizure under the Fourth Amendment, and that the wireless carrier had violated the federal Stored Communications Act (SCA) by turning the messages over to his employer.

The Ninth Circuit Court of Appeals sided with the plaintiff, concluding that he had a reasonable expectation of privacy with respect to the contents of his messages. The Ninth Circuit also found that the review was an illegal search because the audit could have been conducted through less intrusive means.

In a unanimous decision, the Supreme Court reversed the Ninth Circuit's opinion, concluding that the search did not constitute a violation of the plaintiff's Fourth Amendment rights. The Court adopted a broader reading of a public employer's ability to search its property and communications when there is a reasonable business justification for doing so, and if the search is not broader in scope than necessary. In this case, the City had a legitimate need to determine whether the wireless plan met its business needs. The audit only involved review of two months of text messages, and was therefore reasonable in scope.

The Supreme Court explicitly declined to make any broader pronouncements on an employee's reasonable expectations of privacy with regard to communications made using the employer's electronic communications systems. The opinion noted that such technologies are rapidly changing, and that this matter could be decided without making generalizations as to privacy expectations in other situations. The appeal also did not address the plaintiff's SCA claims against the wireless carrier.

Given this narrow decision, Quon provides only limited guidance to private employers not subject to Fourth Amendment limitations. As communications technologies provided to employees change, it is increasingly important for employers to clearly explain to employees rules regarding their use, and the employer's right and intent to review the contents of communications made using its systems. In addition to handbook policies, these expectations should be explained through training, and through specific reminders provided when employees are provided with new communications tools. Any steps the employer can take to remove employee expectations of privacy will help in the event of a later claim of improper access to these communications.