The Supreme Court ruled that public sector employers do not need to obtain a search warrant in order to review employee text messages sent by government issued cell phones. Although this case is most directly applicable to public sector employees, this decision has ramifications concerning whether employees should have an expectation of privacy in connection with employer issued technology.
The United States Supreme Court recently held that the City of Ontario, California was permitted to monitor and review cell phone text messages sent using cell phones owned by the police force. In City of Ontario, California, et al. v. Quon, et al., 130 S. Ct. 2619 (2010), a police officer challenged the police department’s review of the text messages he sent using his department-issued phone, claiming he had an expectation that his text messages would remain private. Mr. Quon claimed that the police department violated his Fourth Amendment right against unreasonable searches and seizure, as well as protections provided under the Stored Communications Act.
The City of Ontario police department issued their police officers cell phones. Mr. Quon regularly exceeded the number of text messages provided under the cell phone plan. Eventually the department requested and received the Mr. Quon’s text message records. The department claimed that it requested the text message records in order to determine whether the existing text message plan was sufficient for necessary work-related text messages. The police department compared Mr. Quon’s text message records to his time sheets and only reviewed those texts composed by Mr. Quon during his working hours. For the month the department conducted this review, the department found that Mr. Quon sent or received 456 messages, only 57 of which were work related. Many of these messages were also sexually graphic and Mr. Quon was disciplined for sending these personal messages during work hours.
The Ninth Circuit Court of Appeals concluded that Mr. Quon had an expectation that his text messages would remain private. Although the Ninth Circuit did not go so far as to hold that the department could never review text messages for work-related purposes, it held that the particular search in this case was not reasonable in scope.
The Supreme Court reversed the Ninth Circuit ruling. Although the Supreme Court agreed that “individuals do not lose their Fourth Amendment rights merely because they work for the government instead of a private employer,” the Court held that it was necessary to determine an employee’s expectation of privacy in his electronic communications on a case-by-case basis.
In this particular case, the Supreme Court declined to rule on whether Mr. Quon had a reasonable expectation of privacy in relation to his text messages. The Supreme Court opted not to rule on this issue even though the department’s computer policy specifically stated that “[u]sers should have no expectation of privacy or confidentiality when using” the department’s computers. Subsequent memos circulated by the department and statements by department officials informed employees that the computer policy also applied to text messages sent using the department’s cell phones.
Instead, the Supreme Court decided to decide this case on narrower grounds- holding that this particular search did not violate the Fourth Amendment. Although, in prior cases, the Supreme Court held that warrantless searches are per se unreasonable, the Supreme Court also recognized “established and well-delineated exceptions” to this general rule. One such exception includes searches undertaken due to “special needs” of the workplace. In this particular case, the search was undertaken in order to determine whether the department’s cell phone plan was sufficient to meet the department’s needs. Since the main reason behind the search was a non-investigatory work-related purpose, the Supreme Court held that the department did not violate Mr. Quon’s Fourth Amendment Rights.
This case is limited in its holding. First, the Fourth Amendment only applies to government actors, so private employers do not need to undergo the same “expectation of privacy” analysis undertaken by the Supreme Court in this case. Nevertheless, this case is still relevant for private sector employers.
Private sector employers should publish a comprehensive policy concerning the use of company computers, phones, cell phones, and other technology. This policy should remind employees that all computers, cell phones, and technology issued by the company are company property and that the employer has the right to monitor and review the employee’s use. Although private sector employers are not subject to Fourth Amendment restrictions on conducting searches, an employer is better off reminding employees that employer issued technology, including communications made using this technology, remain the property of the employer.