Texting on Company Equipment

Don't expect privacy when you send text messages on devices owned by your employer.

Every once in a great while, a hot-button issue (like health care reform) takes a very fast track to the Supreme Court. Usually, however, it takes developing controversies – and emerging technologies -- years to finally reach the highest court in the land. That’s what happened in 2010, when the Supreme Court finally decided its first case on electronic monitoring in the workplace.

Reasonable Expectations of Privacy

The case, called City of Ontario, California v. Quon, involved a government employee. Jeff Quon was a member of Ontario’s SWAT team. Along with the rest of the team, he was issued a pager with texting capabilities and told that employee usage of the devices wouldn’t be monitored as long as employees paid any charges for exceeding the character limit each month. This contradicted the city’s written policy, which said (as many employer policies do) that employee use of email, Internet, and pagers was not private.

Despite its statement, the city decided to audit Quon’s recent messages after he went over the limit a few times. It turns out Quon had used his pager extensively for personal messages, and had sent a number of sexually explicit messages. Some of the recipients of those messages sued the city, along with Quon, for violation of privacy.

Because Quon was a public employee, the Fourth Amendment of the U.S. constitution applied to his case. That provision protects people from unreasonable searches by the government, including Quon’s employer. The Court of Appeal that had decided the case found that Quon had a reasonable expectation of privacy in his text messages because he was told that they would not be read as long as he paid the fees. Although the city had a reasonable justification for its search (to decide whether to raise the character limit for employee pagers), the Court of Appeal found that the city should have used been less intrusive. For example, the city could have warned Quon that his messages would be audited in the future rather than reading messages that had already been sent. Or, the city could have asked Quon to do the audit himself.

The Supreme Court’s Decision

The Supreme Court disagreed with the Court of Appeal’s decision and found that Quon’s privacy rights weren’t violated. In reaching this decision, the Court assumed for the purpose of argument that the Fourth Amendment protected Quon and that he had a reasonable expectation of privacy in the content of his text messages.

Even so, the Court found that the city’s search was justified and reasonable. The city had a legitimate, work-related reason for performing the audit, which it took steps to limit by redacting messages Quon sent when he was off duty and by auditing only two months’ worth of messages. The Court found that this gave the city a right to monitor, especially given that Quon should not have expected absolute privacy, given that he was a law enforcement officer whose on-the-job actions were subject to legal scrutiny for a variety of reasons.

By assuming (without deciding) that Quon had a right to privacy, the Court tried to limit its holding to the circumstances of the case, in which written policy and the nature of Quon’s job warned him that he could be monitored, and the city took steps to limit its intrusion. The Court kept its decision narrow because communications technology is changing so rapidly. As the majority opinion states, “The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear.”

Texting at Work

The Court’s decision in the Quon case applies explicitly only to governmental employers; private employers don’t have to worry about violating the Fourth Amendment, and so have freer rein when it comes to monitoring employees. Although Quon clearly exercised poor judgment, his case was strengthened by his employer’s statement that it would not read employee messages as long as employees paid usage fees. That he lost despite the protections of the Fourth Amendment and his employer’s promise doesn’t bode well for private employees looking for privacy when using company communications equipment. Despite its unique facts and setting, the Quon case is simply another in a long line of decisions by courts at every level across the county, finding that employers are generally free to monitor employee communications on company devices.

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