Privacy in the Workplace

The right of an employer to read an employee's communications created with an employer-owned computer or pager is a controversial one. Balanced against the employer's right to control its equipment and its workers' time are considerations of personal privacy. The tensions have become emphasized by the increasingly common practice of mixing business and personal time and communications.

The U.S. Supreme Court has recently agreed to hear a case about the right of an employer to read an employee's text messages, which appears to involve fundamental concepts. The fact that the employer is the city of Ontario, and the employee a city police officer, adds to the inherent interest of the public in the issue and has brought the case some notoriety.

The case, however, is so fact-intensive that it is likely that the high court's decision will not address far-reaching Fourth Amendment doctrine. But it may, if the justices are so inclined.

Jeff Quon is an Ontario police sergeant. In 2001, the police department issued him a pager to be used for text messages. The department had policies in force for other communications devices, but it made no acknowledgment of the new medium in its policies.

Department written policy prohibited personal use, but Quon's supervisor asked only that he pay for characters in excess of the monthly allocation of 25,000, with no inquiries into its use. When Quon's monthly total exceeded the permitted 25,000 characters, he was billed for the excess, and he paid, no questions asked.

At some point in 2003, his supervisor became concerned with the volume of his use, and he reviewed the texts of his messages. The tests showed a significant amount of personal use, including some sexually explicit messages.

When Quon leaned that the privacy of his messages had been invaded by the city, he sued, alleging that reading the messages was an unlawful search, in violation of his Fourth Amendment rights.

Trial in the U.S. District Court in Riverside resulted in a win for the city. The judge asked the jury to determine whether the intent of the chief of police in reading the messages was to discover misconduct or to determine the value of the 25,000 character limit. If the former, it would be too intrusive for the Fourth Amendment; if the latter, it would not be a constitutional violation. The jury found in favor of the city, and the judge dismissed the rest of the case.

On appeal, the 9th U.S. Circuit Court of Appeals took an entirely different view. It found the city's search to be unreasonable as a matter of law, meaning that the question should never have been submitted to the jury. Quon v. Arch Wireless Operating Co. Inc., 529 F.3d 892 (9th Cir., 2008), petition for rehearing en banc denied, 554 F.3d 769 (9th Cir. 2009)).

The Fourth Amendment protects "...the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures." The key word, of course, is "unreasonable." Case law breaks this analysis down "by assessing on the one hand, the degree to which [the government act in question] intrudes upon an individual's privacy, and, on the other, the degree to which [the intrusion] is needed for the promotion of legitimate government interests."

But no search is questionable unless the individual claiming to be offended has a reasonable expectation of privacy. The books are full of case law on this issue. One example is that the contents of a mailed envelope are protected, but any writing on the outside of the envelope is not.

The ongoing development of electronic communications has tested the concept of reasonable expectations. Most electronic communications are protected, despite the fact that they must be transmitted through an outside agency, such as the company the city engaged to set up its pager system. Internet messages are protected, but not the address of sender and receiver.

Whether Quon had a privacy expectation was the question given to the jury by the District Court, but which the 9th Circuit found to be a question of law.

The 9th Circuit found that text messages are no different than letters for privacy purposes. But it was the police department's "informal policy" that there would be no audit if the overages were paid that allowed Quoin to have an expectation of privacy.

If there is an expectation of privacy, any search must be reasonable in scope. The appellate court did not find the city's search to be reasonable. Rather, it found the actual objectives of the search to be related to the 25,000-per-month character limit, and for that objective, a far less intrusive search - one which did not require reading the text messages - would have sufficed.

The department had decided instead to review all messages, both work-related and personal, without Quon's consent. According to the 9th Circuit panel, "this was excessively intrusive in light of the noninvestigatory object of the search, and because [Quon] had a reasonable expectation of privacy in the messages, the search violated [his] Fourth Amendment rights."

The convoluted fact pattern makes the case of doubtful precedential value. The city had in place policies that would have justified searching the contents of messages, but not only did it not enforce it, it legitimized ignoring the policy by allowing payment for excessive usage.

There is little reason to doubt the right of a private employer to pre-emptively negate any possible expectation of privacy in employee computer use. Announced policies, policy manuals and employee-signed acknowledgments of the policy are all effective means for a private employer to eliminate any question of its right.

It is important to recognize that constitutional limitations on government entities do not normally apply to private enterprises. So should the rules about employee communications be any different when, as in this case, the government is the employer? Can the government require as a condition of employment that the employee waive any expectation of privacy? Other Fourth Amendment protections are lost by waiver, and there is little reason to doubt that properly enforced, the same considerations would apply in the public employment area.

The Quon case has broken new ground, as the first in which a federal appeals court has found that the Constitution protects the privacy rights of government employees using electronic communications equipment.

The Supreme Court has usually been highly supportive of the rights of employers and reluctant to impose on government employers limitations that would not apply in the private sector.

The case is a lot more complicated than this. There were other plaintiffs, including the addressees of his messages, and other defendants, one of which was the supplier of the wireless system through which the messages were sent. It contains a holding important to the service provider and others rendering this service, an issue which may interest the Supreme Court more than Fourth Amendment interpretation, and which would be the subject of separate commentary.

When the city requested rehearing of the decision by an en banc panel of 9th Circuit judges, the denial of that petition evoked a biting dissent, challenging virtually all of the first panel's holdings.

Press reports on the case have suggested that it is a major decision supporting privacy. That may or may not be the eventual outcome. Jeff Quon may not win his case, but it is possible that later trials or appellate decisions could address the rights of others, including the recipients of some of the messages.

The Supreme Court may ultimately write a narrow opinion that leaves the major privacy questions open, or a broad one that defines privacy rights or limitations, which would have a major effect on electronic communications for years to come. Stay tuned.