Justice Kennedy, writing for all members of the Court except Justice Scalia (who supported the outcome in a concurrence) expressly avoided a decision on what expectation of privacy might be reasonable in new communications devices. "The Court must proceed with care when considering the whole concept of privacy expectations in communications made on electronic equipment owned by a government employer," he wrote. Instead, the Court assumed the employee, a police officer in Ontario, California, had such an expectation of privacy in his text messages sent on a pager but found that the employer’s review of the messages for administrative/accounting reasons was not unreasonable.
For background on the specific facts of the case, see our prior blog post regarding the oral argument before the Supreme Court and our discussion of the case after the Supreme Court granted certiorari.
As observed by Hogan Lovells in an Associated Press interview “the decision made clear that ‘if the employer is doing something for a legitimate business purpose, it’s not likely to be [deemed by a court to be] unreasonable.’” Notably, Justice Kennedy in responding to comments of Justice Scalia in his concurrence, observed that just as the public employer's search was reasonable because of its legitimate administrative/accounting purpose, it would also be "regarded as reasonable and normal in the private-employer context".
If, as seems likely, the legitimate business purpose of an employer's search becomes a primary focus of courts following this decision, an earlier e-mail private employer privacy tort cases Smyth v. Pillsbury, C.A. No.95-5712, (E.D. Pa. 1996) could have new vitality. Smyth held that held the employer’s legitimate purpose for monitoring trumped an employee'ss expectation of privacy even where employees were told by the employer that that they would not be monitored.
That is not to say that employer policies limiting or eliminating expectations of privacy are not important, as the Court yesterday observed in dicta:
[E]mployer policies concerning communications will of course shape the reasonable expectations of their employees, especially to the extent that such policies are clearly communicated.
Notably, the Courts’ discussion of appropriate employer policies was in the context of the issue not decided, the reasonable expectation of the employees. But as we reported recently with respect to a New Jersey Supreme Court case on private employer monitoring, employer-set expectations are still very important when it comes to the boundaries for employer searches of electronic communications.
While the court expressly did not resolve fundamental issues concerning employees’ expectation of privacy in workplace electronic communications, private employers are well-advised to continue: (1) implementing workplace monitoring policies that clearly communicate the scope of employer rights to monitor workplace electronic communications (over any medium); (2) deploying appropriate training and other practices to minimize the risk that an employer’s actions might undermine its official policies through mixed signals (and therefore result in employees having an expectation of privacy); and (3) to only engage in monitoring for “legitimate, work related purpose[s]” that are not “excessive in scope."