U.S. Supreme Court Decision Highlights Importance of Clear Technology Use Policy

June 18, 2010

By: Jessica C. Moller

On June 17, 2010, the U.S. Supreme Court issued a decision in a closely watched case involving discipline of an employee for improper text messaging, City of Ontario v. Quon. Although the Court’s ruling is narrow in scope, finding that the public employer’s search of the text messages was a reasonable search within the meaning of the Fourth Amendment, the Court clearly implied that an employee’s reasonable expectation of privacy will be shaped by a clearly communicated employer policy governing the use of each particular type of employer-provided technology.

The case involved the Ontario Police Department’s review of text messages sent and received by one of its officers on a department-owned electronic pager. The Department had a “Computer Usage, Internet and E-mail Policy” that gave the department the right to monitor employee Internet and e-mail use and all network activity. Although the policy did not explicitly cover text messaging, the department had officially stated that text messages on department owned pagers would be treated the same as e-mails under that policy.

Every officer in the department who was assigned an electronic pager was allotted 25,000 characters of use. When there was an overage, a lieutenant audited the text messages to ensure the pager was being used only for business-related purposes. In practice, however, whenever the plaintiff in the case, Sgt. Jeffery Quon, exceeded the allotment, the lieutenant told him he would not audit the messages if he paid the department for the overage costs. After Quon exceeded his allotment several times, the police chief ordered an audit of his text messages to determine whether the allotment was still sufficient for work-related messages, or whether the pager was being used for Quon’s personal use. During the audit, sexually explicit text messages were discovered and Quon was disciplined.

Quon sued claiming, among other things, that the audit of his text messages was an unlawful search in violation of his Fourth Amendment rights. The Ninth Circuit Court of Appeals agreed, holding that Quon had a reasonable expectation of privacy in the content of the text messages because of the lieutenant’s assurances that the messages would not be read if the overage was paid. The City appealed to the United States Supreme Court.

The high court reversed, but rather than issue a broad pronouncement concerning employee privacy rights in electronic communications, decided the case on narrower grounds. As the Court explained: “A broad holding concerning employees’ privacy expectations vis-À-vis employer-provided technological equipment might have implications for future cases that cannot be predicted.”

For that reason, the Court assumed that Quon had a reasonable expectation of privacy in his text messages. The Court then went on to hold that the audit of Quon’s texts was a reasonable search both at its inception and in its scope, and therefore did not violate the Fourth Amendment. The department had a legitimate interest in auditing the text messages to “ensur[e] that employees were not being forced to pay out of their own pockets for work-related expenses, or on the other hand that the City was not paying for extensive personal communications.” In addition, “reviewing the transcripts [of Quon’s text messages] 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.”

In what can and should be read as an important notice to employers, the Court emphasized the importance of a technology use policy noting - “[e]mployer policies concerning communications will of course shape the reasonable expectations of employees, especially to the extent that such policies are clearly communicated.” The Court also noted Quon’s assertion that a supervisory employee created an expectation of privacy by assuring him that his text messages would not be audited if he paid overage charges. To avoid such claims, employers should train employees on their technology use policy and draft such policies to ban verbal modification.

The case also highlights a potential problem with the scope of many employer policies. The Court noted a distinction between employer-provided e-mail, and text messages typically transmitted through the cell phone provider’s server. An employer cannot assume that a policy which covers communications passing through its server also covers those that do not. In Quon, the department’s policy focused on e-mail, without mentioning text messages, but when pagers were issued, the department informed employees that its policy applied to text messages as well. That may not be enough in all cases. Given the increased use of smart phones and personal e-mail accounts accessed through employer-provided equipment, employers are well-advised to draft technology use policies broadly. However, such policies must be drafted with care given the Supreme Court’s observation that the audit of messages on Quon’s employer-provided pager “was not nearly as intrusive as a search of his personal e-mail account or pager … would have been.”

The take away from the Quon decision is clear – employers should adopt a carefully crafted technology use policy, distribute it to employees and educate employees on its meaning and scope. Doing so will limit employee privacy expectations and better prepare the employer to successfully defend technology-related privacy claims.