Under the U.S. Constitution’s Fourth Amendment, which prohibits unreasonable searches and seizures by a governmental entity, it is clear that government employees have some right to privacy while they are at work in their public capacities. The Supreme Court previously confirmed that notion in a 1987 case, O’Connor v. Ortega, which held that “individuals do not lose their Fourth Amendment rights merely because they work for the government instead of a private employer . . . . We reject the suggestion . . . that public employees never have a reasonable expectation of privacy in their place of work.” Although the O’Connor case had dealt with the physical search of a public employee’s workspace, on June 17, 2010, the Supreme Court in City of Ontario v. Quon applied the principles of O’Connor to a public employer’s review of a government employee’s text messages transmitted over an employer-provided pager. The Court in Quon held that although a government employee may have had a reasonable expectation of privacy in personal text messages transmitted over employer-owned equipment, his employer’s actions did not violate the Fourth Amendment because the employer was motivated by legitimate work-related reasons and its “search” of the employee’s text messages was not excessive in scope.

Background             

In Quon, the City of Ontario, California (the “City”) acquired pagers with text-messaging capabilities and began paying a service provider for two-way messaging services. The service contract for the pagers provided that the City, for a set contract price, was entitled to no more than a certain number of messages per month. Messages beyond that number resulted in additional charges. The City provided these pagers, along with the service, to City employees, including police officers, for use in their official capacity.

Before issuing the pagers to its employees, the City announced a “Computer Usage, Internet and Email Policy” in which it specified that the City “reserves the right to monitor and log all network activity including e-mail and Internet use, with or without notice. Users should have no expectation of privacy or confidentiality when using these resources.” Although the policy did not cover text messages by its explicit terms, employees were informed that text messages would be treated like e-mails for purposes of the policy. In 2002, the Ontario Police Department (“OPD”) noticed that the number of messages sent and received by some of its officers were consistently beyond the number allowed by the service provider, resulting in additional charges. One of the officers who had run up such charges was Sgt. Jeff Quon, a member of the SWAT team. In light of the overcharges, Sgt. Quon’s superior told him that in lieu of auditing his messages to determine which ones were business or personal in nature, Sgt. Quon could simply pay to the OPD the amount of the overcharge, which Sgt. Quon agreed to do. This arrangement continued for several months. In late 2002, OPD made the decision to review its contract with the service provider to audit whether the existing message limit was too low. In connection with this decision, the City reviewed whether officers were paying overcharge fees for sending work-related messages or personal messages. As part of this audit, the City obtained from the service provider transcripts of the text messages transmitted over the pagers during two recent months. A review of these transcripts revealed that many of Sgt. Quon’s messages were not work-related. Indeed, some of his messages were sexually explicit in nature. Sgt. Quon was subsequently disciplined, and he filed suit against the City and the service provider in federal court, claiming that the City’s actions violated the Fourth Amendment right of privacy, privacy rights under California law, and the federal Stored Communications Act.

After the case was tried before the District Court, it was appealed to the Ninth Circuit Court of Appeals, which ruled that the city’s review of the message transcripts violated the Fourth Amendment right of privacy, concluding that Sgt. Quon had been told that his messages would not be audited if he paid any overcharges due. The Supreme Court agreed to review this narrow issue.

The Supreme Court’s Decision in City of Ontario v. Quon             

On June 17, 2010, the U.S. Supreme Court ruled that the City did not violate Sgt. Quon’s right to privacy by acquiring personal text messages he sent on city-owned equipment. The Court reiterated the O’Connor tests, which state that because some government offices are “so open,” a court must look at “the operational realities of the workplace” to determine the reasonableness of the employee’s expectation of privacy. In addition, once a legitimate privacy expectation is established, an employer’s intrusion into that right “should be judged by the standard of reasonableness under all the circumstances.”  The Court assumed that Sgt. Quon had a reasonable expectation of privacy in his text messages based on the assurance that his messages would not be reviewed if he paid the additional charges attributable to his texting, but concluded that the search of the transcripts of his messages was reasonable under the O’Connor tests. The Court stated that the review of Sgt. Quon’s text-message transcripts was reasonable because it was motivated by a legitimate work-related purpose (determining whether the contractual limitation on text messages in the service contract was adequate to cover all business-related messages) and because it was not excessive in scope (only two months of transcripts were reviewed). Because the search of the text-message transcripts was reasonable under all of the circumstances, it did not violate the Fourth Amendment.

Practical Implications

Although the Quon case turns on the Fourth Amendment, which applies only to government action, the Supreme Court’s analysis may be instructive to courts addressing workplace invasion-of-privacy claims in the private sector. Moreover, there are lessons that private employers can learn from Quon. In court, Sgt. Quon claimed that a superior told employees that their use of the employer-provided pagers for personal messages would not be monitored as long as they paid any charges for exceeding the service-contract limits. This instruction from a superior conflicted with the City’s written electronic communications policy, which expressly stated that the City could monitor messages and that employees should have no expectation of privacy when using employer-provided equipment. Thus, the entire problem could have been avoided if the City had established a clear set of rules and had adhered to them. The informal assurances given by Sgt. Quon’s superior was one of the main issues in this case.

To minimize the risk of invasion-of-privacy claims arising from employee use of employer-provided communication systems, companies should clearly establish policies regarding employer-provided equipment that expressly address personal use of the equipment, the right to monitor such use, and the lack of any expectation of privacy regarding such use. Equally important, an employer should apply these policies consistently. Companies should routinely remind employees about the terms of these policies to avoid any confusion and should invite questions about the policies. In addition, supervisors and management should receive training about the policies and should know the areas in which they have discretion under the policies and those in which they do not.

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