June 1, 2010
On June 17, 2010, the United States Supreme Court ruled that a city audit of an employee’s text messages on a city-owned device did not violate the Fourth Amendment. In The City of Ontario v. Quon, the Supreme Court determined that the City of Ontario’s search was reasonable under the narrow factual circumstances of this case. Significantly, however, the Supreme Court declined to address the broader issue of to what extent does an employee have a reasonable expectation of privacy in his electronic communications on employer-provided devices.
In The City of Ontario, the City of Ontario Police Department (the “City”) provided police officers with alphanumeric pagers capable of sending and receiving text messages. Jeff Quon, a member of the City’s SWAT team, was issued a pager to assist in mobilization in response to emergency situations. The City had a preexisting “Computer Usage, Internet, and Email Policy” that specified its right to monitor all network activity, including email and internet use. Following the distribution of the pagers, the City informed employees, both during a meeting and in a subsequent memorandum, that it would consider text messages the same as emails for purposes of the policy. However, a supervisor informed the officers that their text messages would not be reviewed provided the officers paid for any overage fees.
While Quon consistently exceeded his monthly allotment of messages, he paid the excess charges. As the overuse charges continued, the City initiated an investigation into whether the text messaging message plan was sufficient and if it was requiring its officers to reimburse the City for work-related messages. After the City requested and received transcripts of text messages from its service provider, the transcripts revealed the majority of Quon’s messages were not sent for work-related purposes, including sexually explicit texts to his wife and a female friend. Based upon that information, the City conducted an investigation and ultimately disciplined Quon for his use of personal text messages while on-duty in violation of the “Computer Usage, Internet, and Email Policy.”
Quon filed suit in United States District Court alleging the City’s review of his text messages violated his privacy rights under the Fourth Amendment. While the District Court found Quon had a reasonable expectation of privacy in the content of his text messages, it held that the search was nonetheless reasonable. The District Court determined that the search did not violate Quon’s Fourth Amendment rights as it was for the legitimate purpose of reviewing the sufficiency of the City’s text messaging plan.
On appeal, the Ninth Circuit Court of Appeal agreed that Quon had a reasonable expectation of privacy in his text messages. However, it concluded that the City’s search was unreasonable. Although the search was conducted for a legitimate workrelated purpose, it was deemed unreasonable in scope. The Ninth Circuit found that there were lessintrusive means available to verify the sufficiency of the text messaging plan that would not infringe upon Quon’s Fourth Amendment rights.
The United States Supreme Court reviewed the Ninth Circuit’s decision, but did not issue a broad opinion specifically articulating a standard to evaluate employee privacy rights in the context of electronic technology. Instead of conclusively addressing the validity of Quon’s expectation of privacy in his text messages, the Supreme Court operated under an initial assumption that Quon had an expectation of privacy in his text messages. The Supreme Court then directed its focus on whether the City’s search and review of Quon’s text messages was reasonable. According to the Supreme Court, the City’s review of Quon’s text messages was justified at its inception because the City sought to ensure employees were not being required to reimburse the City for work-related expenses. In addition, the City’s review of the transcripts was determined to be an efficient and expedient method to conduct the review and directly related to the objectives of the City. In evaluating the search itself, the Supreme Court noted that in the course of the City’s investigation, it reviewed only two months of text messages and did not review text messages sent while Quon was offduty. The Supreme Court rejected the Ninth Circuit’s finding that the search was unlawful because less intrusive searches were available. Instead, the Supreme Court found that the mere fact that a less intrusive method for conducting a search may exist does not render the search unlawful under the Fourth Amendment.
Importantly, while it assumed that Quon had an expectation of privacy, the Supreme Court stated that the extent of that expectation was relevant in determining if the City’s search was reasonable. The Supreme Court reasoned that “employer policies concerning communications will of course shape the reasonable expectations of their employees, especially to the extent that such policies are clearly communicated.” The Supreme Court further noted that the City’s “Computer Usage, Internet, and Email Policy” stated that “sers should have no expectation of privacy or confidentiality,” and that it would have been unreasonable for Quon to conclude that his messages were immune from any search. As such, the City’s search was not excessively intrusive as Quon’s reduced privacy expectation “lessened the risk that the review would intrude on the highly private details of Quon’s life.”
The Supreme Court did not, however, express an opinion on whether a supervisor or manager’s later statements may override a written policy—an argument Quon asserted. Consequently, the Supreme Court’s ruling leaves open for future decisions to define the parameters of an employee’s reasonable expectation of privacy in the rapidly developing methods of electronic communication.
Impact of the Decision on Employers
While the Supreme Court declined to specifically articulate a standard to evaluate employee privacy rights in the context of electronic communications technology, the Court’s comments regarding employer policies shaping privacy expectations demonstrate the importance of establishing and regularly disseminating broad policies that place employees on notice that communications may be accessed by the employer. This is particularly true for employers who allow employees to use handheld devices for work and personal purposes. Moreover, in the event an employer is required to review employee communications, those investigations should be initiated based upon a legitimate business reason and be appropriately limited in scope.