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Supreme Court to Decide Reasonable Expectation of Privacy in Text Messages on Employer-Provided Devices

22 December 2009

On December 14, the Supreme Court granted certiorari in City of Ontario v. Quon, a case that could set the parameters for the rights of employees in the workplace to privacy in their electronic communications, or just as easily be narrowly resolved on constitutional grounds with little implications for private employers.

Quon, an officer with the Ontario, California Police Department, was discharged after his employer searched the records of his city-issued pager and found personal and sexually explicit messages between Quon, his wife, his girlfriend, and a co-worker.  Though the city had a policy that it could monitor all employee electronic communications for inappropriate use, Quon's supervisor had communicated an informal policy under which the supervisor would not review the contents of text messages so long as officers exceeding their monthly allotment paid the difference.  Quon had paid the difference in every month that he had exceeded his allotment.

Notwithstanding this informal policy, the police department, as account holder, requested a copy of certain text message transcripts to determine why officers were exceeding their message limits, and discovered Quon's messages.  After being discharged, Quon sued his public employer for a violation of his Fourth Amendment rights, claiming that his supervisor created a constitutionally cognizable reasonable expectation of privacy in the messages by informally mentioning that they would not be reviewed.  In addition, Quon sued the telecommunications provider, Arch Wireless, under the federal Stored Communications Act ("SCA"), which prohibits electronic communication services, which transmit electronic communications such as e-mails and text messages, from disclosing these messages to anyone except to the sender, to the recipient, or in other limited circumstances.

Though the district court ruled against Quon on all claims, the Ninth Circuit reversed, finding that Quon and the recipients of the text messages had a reasonable expectation in the privacy of their messages, as guaranteed by the supervisor's informal policy.  It also ruled that the telecommunications provider violated the SCA by disclosing the content of the communications to the city which, despite being the actual subscriber to the text messaging service, was not the technical "sender" or "recipient" of the text messages.  The Ninth Circuit denied a review of the case en banc, over the dissent of seven circuit judges.

Though Supreme Court will determine whether the search of the text messages violated the Fourth Amendment, it could be important to private employers given that state law privacy rights are governed by an often-overlapping "reasonable expectation of privacy" standard.  Currently, many  employers, like the city of Ontario, institute policies expressly disclaiming any potential right to privacy in their employees' electronic communications using company resources.  The disciplinary force of employment policies can be weakened by inaction or inconsistent application, but there would be serious implications for employers if they could also be affected by conflicting representations by low-level managers that are not sanctioned by the company.

The Court will also review whether the city was required to abstain from reviewing the content of the text messages in favor of non-content information that could have revealed the information about pager use for which it was searching, and whether the recipients of the text messages -- Quon's wife, girlfriend, and co-worker -- had their constitutional rights violated by the city's search.

Though this case might provide some pause for employers, this Supreme Court's grant of certiorari in a Ninth Circuit case creating new case law contrary to that of other circuits, over the dissent of a number of their conservative colleagues, seems ripe for overturning.  Nevertheless, it remains good law in the Ninth Circuit and is potential fodder for other employment lawsuits until and when the Supreme Court issues a decision in the case.  The more permanent and significant result of this appeal could be the Court's denial of certiorari on the SCA issue, leaving as good law in the Ninth Circuit that electronic communication services cannot disclose the content of stored messages to organizational clients without the specific approval of the person either sending or receiving a particular message.  Employers, especially in the Ninth Circuit, should amend their electronic communications policies to receive authorization from employees to review e-mails, text messages, and other electronic communications stored remotely by the vendors that process these messages, especially as more employers migrate their e-mail and other services to servers not owned or operated in-house.

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