By Galen Gentry
In City of Ontario, California v. Quon. The court held that a public employer’s examination of an employee’s personal text messages on a government-issued pager did not violate the Fourth Amendment. Justice Kennedy’s opinion for the Court remarked that a review of messages on an employer-provided device would similarly be regarded as “reasonable and normal in the private-employer context.”
A police sergeant was using a work-issued pager to send sexually explicit texts. The Supreme Court ruled Thursday that under the circumstances the police department was entitled to read his messages. In a unanimous decision, the high court said that even if police Sgt. Jeff Quon had an expectation that his pager messages would remain private, a police department audit of his messages was nonetheless reasonable.
“Because the search was motivated by a legitimate work-related purpose, and because it was not excessive in scope, the search was reasonable,” Justice Anthony Kennedy wrote for the court.
Quon’s employer asked its wireless service provider for details about the text messages sent and received by the city’s police officers, when their texts regularly exceeded the monthly limit for which the city had contracted. Quon was disciplined for violating police department rules when the city discovered that he sent numerous personal messages. He and the individuals with whom he communicated and who communicated with him sued the city, arguing that the city engaged in an unreasonable search in violation of the Fourth Amendment of the US Constitution, the privacy clause found in Article I, section 1 of the California constitution, and also the federal Stored Communications Act (SCA).
This is good news for employers and the case gives them guidance on the issue of employee privacy in this context:
Employers should establish the level of privacy expectations with a written policy that covers all the gizmos the company uses–telephones, cellular phone, sms text, and email.
Employers should avoid reviewing the content of sms messages, or emails or asking their service providers to do so, unless the employer has a clear work-related purpose such as an investigation of suspected wrongdoing or a non-investigative financial or administrative objective.
Content review should be done in a manner that limits privacy intrusions. The Quon decision states that this does not mean “least intrusive search practicable” but instead it must be a search reasonably limited to the employer’s legitimate, work related objectives.
A reasonable review of employee communications with realistic work related objectives can also serve as a defense against privacy claims by non-employees who communicated with the employee.
Recent Comments