Last December, I wrote about the 9th Circuit Court of Appeals case between the City of Ontario, California and its employee, Police Sergeant Jeff Quon which was appealed to the United States Supreme Court. On June 17, the U.S. Supreme Court issued its decision (pdf).
The question before the U.S. Supreme Court was whether or not the City’s review of text messages sent and received on an employer issued pager violated Sergeant Quon’s Fourth Amendment’s protection against unreasonable search and seizure? Sergeant Quon argued, he had a reasonable expectation of privacy in the text messages he sent and received.
The Court acknowledged, we
“…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. . . .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. . . .At present, it is uncertain how workplace norms and the law’s treatment of them, will evolve.”
The U.S. Supreme Court did not address whether Quon had an expectation of privacy, but instead stated, “[t]he case can be decided by determining that the search was reasonable even assuming Quon had a reasonable expectation of privacy.” The Court in choosing to dispose of this case on narrower grounds, assumed several propositions arguendo: (1) Quon had a reasonable expectation of privacy in the text messages sent on the pager provided by the City; (2) The City’s review of the transcript of the text messages constituted a search within the meaning of the Fourth Amendment; and (3) The principles applicable to a government employer’s search of an employee’s physical office apply with at least the same force when the employer intrudes on the employee’s privacy in the electronic sphere.
The Court held, “[b]ecause the search was motivated by a legitimate work-related purpose, and because it was not excessive in scope, the search was reasonable. . .Petitioners did not violate Quon’s Fourth Amendment rights.”
Because the Court chose to decide this case on very narrow grounds, which are very fact-specific, not much guidance was provided to other employers dealing with technology issues. What employers need to continue to do is:
1. Make sure policies are updated and cover all your current technology.
2. Policies should clearly outline employees’ expectations concerning personal use of technology and equipment.
3. Insure your policies are being followed and not contradicted by management.
4. Train employees on all policies, including new or revised policies.