In June, the Supreme Court ruled that a California police department did not violate a public employee’s Fourth Amendment right to be free from unreasonable search and seizure after the department reviewed sexually explicit text messages that an employee sent and received on a department-issued pager. City of Ontario, California, et al. v. Quon, et al., 130 S. Ct. 2619 (2010).
Before pagers were issued to the police department, employees were advised of the City’s “Computer Usage, Internet and E-mail Policy”. The policy warned employees that the City “reserves the right to monitor and log all network activity including e-mail and Internet use, with or without notice” and that “users should have no expectation of privacy or confidentiality when using these resources.” While the policy did not specifically apply to pagers and text messages, employees were informed that the pagers would be subject to the policy. Quon argued that he had an expectation of privacy because the Police Chief had told employees that as long as they stayed within the proscribed number of texts per month, or reimbursed the City for the associated costs, the City would not review employees’ personal texts.
Because Quon and other police officers were routinely exceeding their monthly text allotment, the City audited the pager records from the service provider to determine whether the City should increase the text allotment for its employees. During the course of the audit, the City discovered that the overwhelming majority of Quon’s text messages not only were unrelated to work, but actually were sexually explicit exchanges with other members of the department. Quon and others were disciplined for their improper use of City issued equipment.
The Supreme Court focused on whether the search undertaken by the City was a “reasonable” one given (1) the City’s stated business justification (to determine whether it should increase employees’ monthly text allotment); and (2) the intrusiveness of the search. In both instances, the Supreme Court answered that the search was reasonable.
First, the Court found that the City had a legitimate business purpose in auditing the messages to consider whether to increase the number of pages employees were permitted to send each month.
Second, the Court found that the search was not overly intrusive because:
- the City only reviewed texts that were sent while employees were on-duty;
- the search was limited to a two-month period, even though Quon had exceeded his text limit for many months;
- Quon never was assured that the texts he sent would not be reviewed; and
- as a police officer, Quon should have known that his conduct was subject to review.
While Quon involved a public sector employee (private sector employees do not have Fourth Amendment rights in their workplace), the Court stated that search would be “regarded as reasonable and normal in the private-employer context. . . .” Therefore, both public and private employers should:
- Adopt and disseminate a comprehensive electronic communications policy that covers all current electronic communication mediums (voicemail, instant messages, intranet, internet, email, pagers, texts, portable electronic devices etc.);
- Ensure that your Company’s policy is broad enough to cover emerging technologies;
- Articulate clearly that employees have no expectation of privacy when using technology that is either issued by the Company or uses Company infrastructure;
- Train supervisors about the Company’s electronic communications policy and admonish them not to make “side-agreements” with employees that contradict the Company’s formal policy;
- Before conducting a search of electronic communications, ask whether the Company has a provable, legitimate business purpose for conducting such a search