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This article is intended to inform the reader of general legal principles applicable to the subject area. It is not intended to provide legal advice regarding specific problems or circumstances. Readers should consult with competent counsel with regard to specific situations.

Spring 2010

A catch phrase from a popular 1960s television show, Lost in Space, may be the best advice for the employee who uses employer-provided electronic equipment to send racy, sexually explicit communications to others. On June 17, 2010, the United States Supreme Court issued its decision in City of Ontario v. Quon, 560 U.S.        (2010), holding that a government employer has the right, in certain enumerated circumstances, to read text messages sent and received on a pager owned by the employer and issued to an employee.

Jeff Quon was employed by the Ontario Police Department (the OPD). He was a police sergeant and a member of the OPD's Special Weapons and Tactics (SWAT) team. In October 2001, the City of Ontario (the City) purchased 20 alphanumeric pagers capable of sending and receiving text messages and issued them to Quon and other members of the SWAT team for use in mobilizing and responding to emergency situations.

The City, prior to acquiring the pagers, adopted and issued a comprehensive "Computer Usage, Internet and E-Mail Policy" (the Computer Policy) that applied to all employees. The Computer Policy provided notice to employees that the City reserved the right to monitor electronic communications and that employees should have no expectation of privacy or confidentiality when using City-provided electronic equipment. Although the Computer Policy did not specifically apply to pagers and text messaging on the pagers, the City notified employees that it would treat text messaging the same as e-mails.

Quon and other SWAT team members with pagers were allotted a certain text message character limit each month, but within the first or second billing cycle Quon was already exceeding this limit. The OPD officer responsible for monitoring the use and contract for the pagers allowed Quon to simply pay the overcharge rather than submit to an audit of the use of his pager. Over the course of the next several months this was the common practice when Quon exceeded his text message character allotment.

In seeking to determine whether the text message character allotment was set too low, the OPD undertook an audit of Quon's and others' text messaging. This audit included receiving from the service provider, Arch Wireless, the actual text messages sent for a two-month period. It was during this audit that the OPD determined that many of the messages sent and received by Quon were not work-related and that some were sexually explicit. This resulted in an internal affairs investigation into whether Quon was violating OPD rules by pursuing personal matters while on duty. At the conclusion of the investigation Quon was allegedly disciplined.

Quon sued the City of Ontario and Arch Wireless in the U.S. District Court for the Central District of California, alleging that they had violated his Fourth Amendment rights against an unreasonable search and seizure. Ultimately, relying on the plurality decision in O'Connor v. Ortega, 480 U.S. 709, 711 (1987), the District Court determined that Quon had a reasonable expectation of privacy in the text messages but held a trial to determine the OPD's purpose for the audit of the text message character allotment. The jury concluded that the purpose of the audit was to determine whether the text message character limit was sufficient. On this finding the District Court then held that the City audit was reasonable and did not violate Quon's Fourth Amendment rights and thus entered judgment in favor of the City. Quon appealed.

On appeal, the United States Court of Appeals for the Ninth Circuit agreed with the District Court that Quon had a reasonable expectation of privacy in his text messages but reversed on the issue of the Fourth Amendment violation. The City appealed and the Supreme Court accepted review of the issue to determine whether the audit was reasonable.

In deciding the case, Justice Anthony Kennedy wrote that "[t]hough the case touches issues of far-reaching significance, the Court concludes it can be resolved by settled principles determining when a search is reasonable." The Court assumed for purposes of the appeal that first, "Quon had a reasonable expectation of privacy in his text messages sent on the pager provided to him by the City," that second, the City's "review of the transcript [of the text messages] constituted a search within the meaning of the Fourth Amendment," and that third, "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 restated the general rule that warrantless searches are per se unreasonable under the Fourth Amendment but recognized that "special needs" of the workplace is a justified exception to the general rule. Relying on O'Connor, supra., the Court stated that:
"[W]hen conducted for a noninvestigatory, work-related purpos[e] or the investigatio[n] of work-related misconduct, a government employer's warrantless search is reasonable if it is justified at its inception and if the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the circumstances giving rise to the search."
Quon, 560 U. S.        (2010), citing O'Connor, 480 U. S., at 725-726. Internal quotations omitted.

The Court found that the City's audit was reasonable and did not violate Quon's Fourth Amendment rights under the "special needs" of the workplace exception to the warrantless search here. The Court said that the search was "justified at its inception because there were reasonable grounds for suspecting that the search was necessary for a noninvestigatory work-related purpose." The Court also stated that "as for the scope of the search, reviewing the transcripts was reasonable because it was an efficient and expedient way to determine whether Quon's overages were the result of work-related messaging or personal use." The Court also noted that during the internal affairs investigation the City had "redacted all messages Quon sent while off duty, a measure which reduced the intrusiveness of any further review of the transcripts." Finally, the Court stated that "even if he could assume [that] some level of privacy would inhere in his messages, it would not have been reasonable for Quon to conclude that his messages were in all circumstances immune from scrutiny."

After Quon, employers that pay for and provide electronic equipment to employees for work-related communication purposes have the right to monitor and search such equipment when they have a noninvestigatory work-related purpose. To establish such a work-related purpose an employer should have:
  • A comprehensive written policy for use of electronic, computer, e-mail, and communication systems of the employer;
  • a clear statement that an employee does not have an expectation of privacy in communications via the employer's communication systems; and
  • a policy that the employer reviews only material that is sent or received during work or on-duty time.
While the Quon case specifically addressed a government-employer situation it is still instructive for the private-sector employer. The employer who wants to insulate itself from liability will have a comprehensive written policy that advises the private-sector employee of the company's policy for use of company-provided equipment, that stipulates the right to monitor and search the equipment, and that reminds the employee that he does not have an expectation of privacy.