Justices Weigh in on Employee Privacy Issues

On April 19, 2010, the U.S. Supreme Court heard oral argument in the highly publicized and eagerly anticipated case of City of Ontario, California v. Quon. The media buzz surrounding this case caused the public to begin forming a line outside the courtroom at noon the day before. Through a fortunate bit of luck however, I had a guaranteed spot in the courthouse having participated in a swearing-in ceremony before the justices early Monday morning.

Quon, the High Court must decide whether a reasonable expectation of privacy extends to text messages sent from a work issued paging device by an employee, and whether the employer’s review of the text messages was reasonable. Jeff Quon was an Ontario California SWAT officer who was issued a pager by the Ontario Police Department. Under the department’s policy, an employee was allotted 25,000 characters as part of the plan and was required to pay for characters exceeding that amount. After Quon and other SWAT members began receiving numerous overage charges from the wireless carrier, the department decided to review the text messages to determine whether employees were using the pager more for personal use and whether it should increase the character allotment for each employee. The department therefore collected the text messages from Arch Wireless, which provided the text message service and stored text messages for the department. Upon reviewing Quon’s messages, the department found that the majority of the texts were non-work-related and in many instances, sexually explicit.

Quon sued the department, the city of Ontario, and individual officers for violation of the Stored Communications Act and for violation of his Fourth Amendment right to privacy. According to the department, there was a written policy stating that employees did not have any reasonable expectation of privacy in electronic devices provided by the department. Thus, the employee did not have any expectation of privacy in the text messages. Quon argued that he did have a reasonable expectation of privacy in his texts because of the oral policy whereby his supervisor, Lieutenant Steve Dukes would not “audit” messages if the employee paid the overage charges. The 9th Circuit agreed with Quon on the ground that the promise not to inspect the messages created an expectation of privacy.

During oral argument before the Supreme Court, Kent Richland, attorney for the city, argued that no reasonable expectation of privacy existed “vis-Ã -vis the Ontario Police Department in text messages on his department-issued pager in light of the operational realities of his workplace, which included the explicit no privacy in text messages policy.” The Deputy Solicitor General for the Department of Justice supported this argument stating, “[w]hen a government employer has a no-privacy policy in place that governs the use of work technologies, ad hoc statements by a non-policy member cannot create a reasonable expectation of privacy. Put most simply, the computer help desk cannot supplant the chief’s desk.” Interestingly, Richland also stated that oral representations made by supervisors were not inconsistent with the written policy because Lieutenant Duke stated, “the text messages were considered public records and could be audited at any time.”

Chief Justice John G. Roberts Jr. appeared to be the loan dissenter among the justices regarding the city’s argument, stating, “I think if I pay for it, its mine and not the employer’s.” Chief Justice Roberts also noted the increased difficulty in determining what a reasonable person would believe is private in light of the public’s differing comfort level with emerging technologies stating, “I suspect it might change with how old people are and how comfortable they are with the technology when you have all these different-different factors.” The other justices appeared to agree with the city’s position including Justice John Paul Stevens who suggested that SWAT members would expect their texts would be public record asking, “Wouldn’t you just assume that the whole universe of conversations by SWAT officers who were on duty 24/7 might well have to be reviewed by some member of the public or some supervisor?”

In regards to the reasonableness of the search, Justice Stephen G. Breyer seemed skeptical that the search was unreasonable. Justice Breyer repeatedly pressed counsel for Quon to show him why the search was unreasonable. Justice Breyer asked, “what is wrong with the supervisor deciding, I don’t want to do this anymore? I don’t want to collect all this money; it’s too complicated…. What is unreasonable about that?” Counsel for Quon appeared to have no response for Justice Breyer, suggesting at one point that the department could have asked the individual officers to audit their own text messages. Justice Breyer apparently believed this was not an effective alternative noting that employees would not accurately count their personal messages. Justice Sonia Sotomayor agreed stating, “you are relying on the very person you are auditing to do the audit for you. That doesn’t seem either practical or business-wise.”

Employers nationwide are eagerly anticipating the Supreme Court’s decision as a broad ruling from the high court could have sweeping effects to employment law. However, due to the unique factual situation and problems with the factual record, it is possible that justices will issue a limited ruling that might provide little to no guidance to private employers regarding the issues of privacy for work related text messages, e-mails, and other electronic communications. Regardless, Quon highlights the importance for employers to reexamine their privacy policies to ensure that they account for the emerging technologies that are flooding the workplace.

With the emergence of technologies that allow work related devices to text, e-mail, and even surf the Web, it is imperative that employers ensure their policies specifically state messages received and sent, and the data viewed over the Web on such devices, are not private and can be reviewed by the employer. Further, employers should ensure that all employees and supervisors are informed regarding the changes. Moreover, employers should ensure that all persons in a managerial or supervisory position do not make any oral representations or utilize any informal policies that are inconsistent with the written policy. Thoughtful reflection about the types of technologies utilized, and diligence regarding the revision and implementation of the employer’s privacy policies, should limit the risk that an employee will mistakenly believe they have privacy rights for messages and data viewed through work issued mobile devices.

Bryce Besser is an associate at Brown Law Group in San Diego. He has represented clients in the defense of various employment law claims including discrimination, retaliation, and wrongful termination. He has also counseled clients in trade secrets litigation, contracts disputes, and various tort disputes. He can be reached at besser@brownlawgroup.com.

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