Thursday, June 17, 2010

Supreme Court Okays Search of Employee Text Messages

In December we posted an entry regarding privacy of text messages in the employment arena, highlighting the case of Quon v. Arch Wireless Operating Co., Inc. 529 F.3d 892 (9th Cir. 2008); review granted City of Ontario, Cal. v. Quon, --- S.Ct. ----, 2009 WL 1146443, (U.S. Dec 14, 2009) (NO. 08-1332). The case centered on whether an employer has a right to review an employee's text messages. On June 17, 2010, the U.S. Supreme Court issued its ruling on that case and, in a fairly narrow opinion, held that the employer did have the right to review the text messages.

To review, in 2001, the Ontario Police Dept. ("OPD") bought and issued pagers to Jeff Quon ("Quon") and other SWAT Team members in order to help the SWAT Team mobilize and respond to emergency situations. The pagers were administered through Arch Wireless ("Arch"), who billed OPD directly for the pager service. At the time that the pagers were issued, OPD had a “Computer Usage, Internet and E-Mail Policy” (Computer Policy) that applied to all employees. The policy provided 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.” Though the policy did not explicitly apply to text messages, the Court found that meetings were held whereby OPD warned employees that it would apply to their newly issued pagers. After issuance of the pagers, the bills for the pager usage showed "overages" above and beyond the number of characters allotted under OPD's plan. These overages were apparently overlooked by the department's supervisors, if the employee agreed to pay for the excess charges.

After several months of overages, Lloyd Scharf, the Chief for OPD, decided to audit the usage of the pagers, apparently claiming that he was "tired of being a bill collector" and to determine if the pagers were being used for actual OPD business or personal use. At the Chief's direction, OPD requested the textual content of the pages from Arch, and a review of the texts appeared to establish that Quon was using his pager predominantly for personal use. (According the Court's findings of fact, Arch supplied the actual content of the texts which appeared to show that Quon sent or received 456 messages during work hours in the month of August 2002, of which no more than 57 were work related; he sent as many as 80 messages during a single day at work; and on an average workday, Quon sent or received 28 messages, of which only 3 were related to police business.) Quon then allegedly faced discipline for violating OPD rules by pursuing personal matters while on duty.

What gives these facts the additional "sex appeal" is that on reviewing the text messages, many were salacious or sexual in nature, including texts between his ex-wife and new girlfriend and others in the department. Quon and other officers whose messages were also reviewed in the Quon inquiry sued both the department and Arch, claiming violation of their 4th Amendment rights, and violation of the Stored Communications Act ("SCA").

On competing motions for Summary Judgment, the District Court held, relying on the plurality opinion in O’Connor v. Ortega, 480 U. S. 709, that Quon had a "reasonable expectation of privacy" in the content of his messages. Whether the audit was nonetheless reasonable, the court concluded, turned on whether Chief Scharf used it for the improper purpose of determining if Quon was using his pager to waste time, or for the legitimate purpose of determining the efficacy of existing character limits to ensure that officers were not paying hidden work-related costs. “[I]f the purpose for the audit was to determine if Quon was using his pager to‘play games’ and ‘waste time,’ then the audit was not constitutionally reasonable”; but if the audit’s purpose“was to determine the efficacy of the existing character limits to ensure that officers were not paying hidden work related costs, . . . no constitutional violation occurred.” [445 F. Supp. 2d, at 1146.] The District Court then held a jury trial to determine the purpose of the audit. The jury concluded that Scharf ordered the audit to determine the efficacy of the character limits. The District Court accordingly held that petitioners did not violate the Fourth Amendment. It entered judgment in their favor. Quon appealed to the 9th Circuit.

The 9th Circuit reversed, in part. The panel agreed with the District Court that Quon had a "reasonable expectation of privacy" in his text messages but disagreed with the District Court about whether the search was reasonable. Even though the search was conducted for “a legitimate work-related rationale,” the Court of Appeals concluded, it “was not reasonable in scope.” [529 F. 3d 892, 980 (2008)] Which all leads us to the Supreme Court's finding, overruling the 9th Circuit.

Justice Kennedy, writing for the Court, held that the review of Quon’s pager transcripts was reasonable because it was motivated by a legitimate work-related purpose, and because it was not excessive in scope. Echoing the findings of the District Court and the 9th Circuit, the Court found that Quon did have an expectation of privacy, and deemed the review of his text messages to be "searches" under the 4th Amendment. However, the Court concluded that the "searches" were justified and that OPD had “reasonable grounds for [finding it] necessary for a noninvestigatory work-related purpose,” in that the Chief had ordered the audit to determine whether the City’s contractual character limit was sufficient to meet the City’s needs. The review of Quon's messages was also “reasonably related to the objectives of the search,” because both the City and OPD had a legitimate interest in ensuring that employees were not being forced to pay out of their own pockets for work-related expenses, or, on the other hand, that the City was not paying for extensive personal communications. Reviewing the transcripts was an efficient and expedient way to determine whether either of these factors caused Quon’s overages, and the review was also not “excessively intrusive.” It is clear that the Court accepted that Quon had a "reasonable expectation of privacy", but concluded that his 4th Amendment rights were not violated, and instead focused on the fact that the search was legitimately work-related and not excessively instrusive.

While this case dealt with government workers, Justice Kennedy also suggested that under the same set of facts, its ruling would apply to all workers - public or private. ("The court also concludes that the search would be regarded as reasonable and normal in the private-employer context.")

Interestingly, Justice Kennedy also cautioned employees about using employer electronics for personal use. While he noted that it is true that many employers accept or tolerate personal communications on company time and equipment, he also suggested that employees who want to avoid the potential embarrassment of having those communications revealed might "want to purchase and pay for their own" cell phones and other devices.

Concluding thoughts-

First of all, from the employee's perspective, we think that the important lesson provided here would be just what Justice Kennedy addressed, almost in passing. If you don't want your employer knowing about what you post in an email or on other electronic media, don't use the equipment provided by the employer.

From the vantage point of the employer, a "first blush" reading of this case might lead one to believe that this is a significant "employer's rights" victory. However, we would caution that this case is, in the Court's own words, to be narrowly applied in this electronic age. As noted by Justice Kennedy, the "Court must proceed with care when considering the whole concept of privacy expectations in communications made on electronic equipment owned by a government employer. The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear. See, e.g., Olmstead v. United States, 277 U. S. 438 (1928), overruled by Katz v. United States, 389 U. S. 347, 353 (1967)." He also added that "[p]rudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices..." and that a "broad holding concerning employees’ privacy expectations vis-à-vis employer-provided technological equipment might have implications for future cases that cannot be predicted. It is preferable to dispose of this case on narrower grounds."

In short, it appears that the Court concedes it cannot keep up with the technology, saying its ruling applied to the facts of this case, and cautioned against predicting the outcome of future cases based on this one.

The key issue going forward for employer/employee policy relations is that the employer intending to review employee communication on company equipment must make that a clearly communicated policy and, to be safe, make sure that your employees acknowledge receipt of the policy.

To review the complete Supreme Court opinion, go to

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