If an employer issues a cell phone, Blackberry or pager to an employee, does the employer have the right to search text messages sent to or from the device?  According to a recent landmark ruling, the answer appears to be "yes" - but only if the employer consistently follows a formal company policy that clearly authorizes such searches.

 

In Quon v. Arch Wireless, the City of Ontario, California learned this lesson the hard way.  In this case, the Ninth Circuit U.S. Court of Appeals in San Francisco, ruled that the City, its Police Department and Police Chief violated an employee's right to privacy under the California and U.S. Constitutions by searching text messages sent to/from a Department-issued alphanumeric pager.

 

The City contracted with Arch Wireless for wireless text messaging services.  The City's written policy prohibited personal use of City-owned computers, e-mail, Internet and other systems, and allowed the City to search these items.

 

At a meeting, police officers were told that text messages were subject to the e-mail policy.  There also was an informal policy requiring employees to pay for "overage" charges in excess of 25,000 characters per page.  But, the City's longstanding practice was not to audit pagers where the employees agreed to pay for overages.

 

Sergeant Jeffrey Quon frequently exceeded the 25,000-character monthly limit on his pager.  Although Sgt. Quon consistently paid for his overages, the Police Department went ahead and had Quon's text messages searched by Arch Wireless, without first notifying Quon.  The City obtained transcripts of Quon's text messages, many of which were personal and often sexually explicit.

 

Quon, along with several others with whom he "texted", sued his employer in federal court for invasion of privacy and related federal law claims.  Although the trial court threw out all of the claims, the liberal Ninth Circuit reinstated the lawsuit.

 

Both courts found that users of text messaging services have a reasonable expectation of privacy in the content of their text messages stored on a service provider's network, but not the phone numbers to which the texts are sent.  The Ninth Circuit noted that the other plaintiffs with whom Quon was texting had no legitimate expectation that Quon would keep their messages private, and that Quon easily could have voluntarily let the Department read the messages.  But, because the City secretly searched Quon's messages, Quon's privacy rights hinged on the City's policy regarding such searches.

 

The Ninth Circuit suggested that the City might have avoided liability all together if it had simply adhered to the stated policy allowing searches of text messages, or had warned Quon that he was forbidden from personal use of his pager and that his text messages would be reviewed for content.  The City did not do either of these things.  Thus, the Court found Quon had a legally enforceable expectation of privacy due to the "informal policy that the text messages would not be audited" if employees simply paid for the overages.  It also ruled that the search of Quon's messages was unreasonably intrusive.

 

Although the Court ruled that the City violated Quon's privacy rights by the way it carried out its policy, it also signaled that employers may legitimately control text messaging so long as the employer takes steps to limit employees' expectation of privacy in employer-issued computers, cell phones, pages and other devices.  To do so, however, employers must implement and consistently enforce clear written policies permitting the employer to search these devices and the contents of messages sent or received by them.

 

We have written many such policies for our clients and would be pleased to assist your company in drafting legally compliant policies on employee usage of computers, cell phones, pages and the like that will enable the company to monitor usage.