US Supreme Court Attempts to Tackle Employees Right to Privacy in Electronic Communications via Company-Issued Devices, Gets its Feet Wet

United States Supreme Court (USSC) recently decided a case involving a government employee’s right to privacy of electronic communications made over a company-issued device. The Court delivered a narrowly tailored decision and held that a police department’s review of an employee’s text messages did not violate the employee’s Fourth Amendment rights.

The USSC rendered its verdict on June 17, 2010 for the case of City of Ontario, California v. Quon, No. 08- 1332, (it is important to keep in mind the plaintiff in this suit is the California located City of Ontario, not to be confused with the Canadian Province).

Defendant in this suit is Jeff Quon who was a police officer and member of the SWAT team for and employed by the City of Ontario. The cause of action accrued after the City issued pagers to its SWAT team in 2001 so the team could more quickly respond in cases of emergency. Apparently the City paid for a limited number of characters to be electronically transmitted monthly for each pager it handed out. Quon quickly exceeded this limited number (from the first month on) and was given an option by his supervisor either to pay the overage costs or have the City to conduct an audit of his texts to determine whether the overages were work-related or personal. Quon chose and continued to pay the overage fees.

Constant overage charges on Quon’s and other City employee’s pagers provided the impetus for Ontario to audit usage on these government-provided devices. The City was specifically looking to determine whether its employees were having to pay for work-related texts or conversely whether the City was paying for personal text messages.

Upon review of Quon’s texts, the City learned that the overwhelming majority of he had sent and received while on-duty were personal and some were sexually explicit. Quon’s supervisor referred him to internal affairs and he was allegedly disciplined.

Feeling that his Fourth Amendment rights had been violated, Quon filed suit against the City of Ontario, California. After Quon’s loss at the trial court level and then the Ninth Circuit Court’s reverse of the judgment, this case has finally wound its way up to the Supreme Court.

The USSC was able to assume that Quon had a reasonable expectation of privacy for his pager texts and therefore limited its analysis to the focus of whether the City’s search was justified and reasonable in scope.

The USSC held that the search was justified by the City’s legitimate business interest in ensuring that its employees were not paying for work-related texts and that the City was not paying for personal texts. In addressing whether the search was reasonable in scope, the Court held that the search was reasonable and not excessively intrusive. In explanation, it reasoned that although the City of Ontario’s service provider had violated the Stored Communications Act prohibiting unauthorized access to stored electronic communications; this did not render the City’s search as per se unreasonable.

Also providing commentary and highlights of this Supreme Court decision, Amy Komoroski Wiwi and Joy N. Eakley wrote on their Lexology article suggestions for the steps any sort of business, corporation or government agency should take in light of the Quon decision in order to make sure electronic use, communications and privacy policies are in compliance with federal law;

1. “If you do not already have an electronic use and communications policy, consider implementing one. Make it clear that the policy applies to all existing and future communication systems. Consider including in the policy a statement that only the policy and written amendments to it – and not any verbal representations – govern the usage and monitoring of electronic communications.
2. Take the time to review and update any existing electronic use and communications policy to ensure that it covers all existing systems and is broad enough to apply to future systems.
3. Confirm that all employees have received a copy of the electronic use and communications policy. Redistribute it occasionally and consider having employees sign an acknowledgement confirming receipt. Reassess the policy on a regular basis to ensure that it keeps pace with changes in technology and customs of usage.”

Finally and although it’s not actually a holding, the USSC did provide Internet lawyer readers a glimpse into its outlook on the interaction between law, evolving technology, and privacy issues;

“The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear. . . . Prudence 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.”