In City of Ontario, California v. Quon, No. 08-1332, (decided June 17, 2010), the U.S. Supreme Court ruled that the City’s search of an employee’s text messages sent through and received on a City-issued pager was reasonable, and accordingly, the City did not violate the Fourth Amendment to the U.S. Constitution. Even though only government employers are subject to the mandates of the Fourth Amendment, every employer who monitors its employee’s electronic activities over company networks should pay attention to the Supreme Court’s decision in Quon.
Employers should inform employees that employees have no “reasonable expectation of privacy” when sending or receiving personal information through company-owned electronic resources. (Indeed, in some states, employers are required to notify employees that electronic communications will be monitored). Without notice, employees may assume personal communications sent over company resources are private—especially in this era of blurring personal and professional activities.
The situation in Quon is a great example. Mr. Quon was a police officer who sent and received personal text messages through his City-owned pager during work hours. The officer engaged in these activities even though the City had a Computer Usage, Internet and E-Mail Policy stating 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.” Even though text messages were not specifically identified in the Policy, the City did issue a written memorandum clarifying that text messages would be subject to the same restrictions. Mr. Quon knew about these policies, but he claimed that a manager overrode them by allowing Mr. Quon to reimburse the City for his personal use.
The District Court and the Ninth Circuit Court of Appeals agreed that Mr. Quon had a reasonable expectation of privacy in the content of the text messages. The Supreme Court also assumed, for the sake of argument, that Mr. Quon had a reasonable expectation of privacy.
The Supreme Court, however, determined that the City’s search of the text message transcripts was reasonable in light of the circumstances. The City’s stated purpose for the audit was to verify that it and its employees were not overpaying for the text messaging service. And the City only reviewed transcripts of text messages sent during working hours.
In its decision, the Supreme Court provided some guidance about searches of company resources, which other courts will likely follow:
Beyond the circumstances of this case, the Supreme Court did not set any standards about when an employer actually has a legitimate reason to monitor or whether a search is excessively intrusive. The best course for an employer, therefore, is to notify employees of the potential for searches of company resources and be prepared to justify its search with a legitimate reason.
If you have any questions about this decision or the utilization of company resources for personal communications, please contact any member of Baker Hostetler’s Employment and Labor team.
Authorship Credit: Rexford H. Stephens
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