In a much-anticipated decision, on June 17, 2010, the United States Supreme Court unanimously held that an employer’s search of employee text messages may lawfully overcome a reasonable expectation of privacy, even if that search is not the least intrusive means of gathering the work-related information.  While the City of Ontario v. Quon opinion rises from a public sector employment context, with the Court cautioning that it is a narrow holding sculpted to the specific facts presented, the decision will certainly resonate among both federal and state courts as they continue to grapple with the interplay between the expanding universe of electronic media and an employer’s need to manage workplace issues. 

Jeff Quon was employed by the Ontario Police Department (“OPD”) as a police sergeant and a member of OPD’s SWAT Team.  In October 2001, the City acquired 20 alphanumeric pagers capable of sending and receiving text messages.  The wireless service for the pagers was provided by a third party, Arch Wireless Operating Company.  Under the City’s service contract, each pager was allotted a limited number of characters sent or received each month.  Usage in excess of that amount would result in an additional fee.  The City issued pagers to Quon and other SWAT Team members to use for work purposes and for light personal use.

The City had a previously established “Computer Usage, Internet and E-Mail Policy” (“Computer Policy”) that applied to all employees, specifying 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.” In March 2000, Quon signed a statement  acknowledging that he had read and understood the Computer Policy.  Although the Computer Policy did not cover text messages by its explicit terms, management made clear to all employees, including Quon, that the City would treat text messages the same way as it treated e-mails. 

Quon exceeded his monthly text message character allotment, and like other employees, was offered the opportunity to reimburse the City for the overage fee rather than have management audit the messages.  The monthly overages for Quon and a few other employees, however, became the rule rather than the exception, and the City decided to review transcripts of the employees’ text messages to determine whether the limit was too low and whether the employees were unfairly being required to pay for sending work-related messages.  Through that audit, it was discovered that the vast majority of Quon’s text messages were of a personal, not work-related, nature and that there had been a violation of Ontario Police Department rules.

Quon and several other individuals (with whom Quon exchanged text messages), filed suit, alleging that the City violated their Fourth Amendment rights by obtaining and reviewing the transcript of Quon’s messages.  The federal District Court and, following review, the Ninth Circuit Court of Appeals, both found that Quon had a reasonable expectation of privacy in his text messages under the “operational realities of the workplace,” as the employer had chosen not to enforce the policy but instead told Quon that he could simply pay for any overages and avoid having his messages reviewed.  The lower courts, however, differed on whether the text message search was lawfully justified despite the employee’s reasonable privacy expectations, with the Ninth Circuit holding that the search was not reasonable because the City had less intrusive means of obtaining the information it sought. 

The United States Supreme Court reversed the Ninth Circuit’s decision.  The Court operated under three assumptions:  (1) Quon had a reasonable privacy expectation; (2) the City’s review of the messages did constitute a Fourth Amendment search; and (3) the principles applicable to a government employer’s search of an employee’s physical office also apply in the electronic sphere.  With that factual foundation, the Court held that the search was reasonable and lawful because it was motivated by a legitimate work-related purpose and it was not excessive in scope: 

"A government employer’s search of employee records and devices is justified (1) when conducted for a “non-investigatory, work-related purpose” or for “the investigation of work-related misconduct” and (2) if done in a way reasonably related to the objectives of the search, and not excessively intrusive." 
    
Justice Kennedy, writing for the Court, cautioned that “the judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society becomes clear.”  Notwithstanding this suggestion of restraint, the Quon decision continues an analytical process that begins with a determination of whether a reasonable expectation of privacy exists at all, and ends with the balancing of that expectation with employer motivation and method of search and review.  While the emphasis on the public employment context leaves open the question of application to a private employer’s actions, employers are again cautioned to maintain best practices through (1) the consistent notification to employees of policies concerning monitoring of communications over employer-provided equipment and networks, and (2) ensuring a work-related need for the information gathered through (3) a narrowly-tailored search. 

For further information on the Quon decision and its implications for your organization’s policies and procedures pertaining to employer monitoring of electronic communications, please contact Glen E. Kraemer at gkraemer@chklawyers.com or Olivia Perry at operry@chklawyers.com, both resident in our Santa Monica, CA office.