The U.S. Supreme Court will decide this term whether employers can review the text messages that employees send on their employer-issued cell phones, Blackberries, or pagers. In the case in question, Quon v. Arch Wireless, the Ninth Circuit U.S. Court of Appeals ruled that the City of Ontario, its Police Department and Police Chief violated an employee's right to privacy by reviewing text messages which were sent to and from an employee's Department-issued pager.
The City had a written policy that explicitly prohibited personal use of City-owned computers, e-mail, Internet and other systems. This policy also gave the City the right to monitor all network activity and stated that users did not enjoy an expectation of privacy. While the policy did not explicitly cover text messages sent on City-provided pagers, police officers were informed at a meeting that their text messages were indeed subject to this policy.
Despite the policy, the City had an informal practice of permitting personal use of the pagers, so long as the employee paid for any "overage" charges for text messages exceeding a specified limit. Under this practice, Plaintiff Jeffrey Quon consistently paid for his overages without further inquiry from the City.
The Police Department noticed a pattern of over-usage on the Plaintiff's texting. They surmised that he was using the pager for personal (non-business) text messages. It turns out they were correct. Upon review of the text messages, the Police Department discovered lots of personal (non-business) texting - some with explicit sexual content. Notably, this audit of Quon's texting was done without Quon's knowledge or permission.
Quon, along with several others with whom he "texted," sued in federal court for invasion of privacy and related federal law claims.
The Ninth Circuit U.S. Court of Appeal ruled that users of text messaging services like Quon enjoy a reasonable expectation of privacy in their text messages. Ironically, the Ninth Circuit also ruled that the people Quon texted did not have a similar expectation because Quon could have voluntarily let the Department or others read the messages he received.
The appellate court suggested the City might have avoided liability if it (i) had simply adhered to its stated policy allowing searches of text messages; or (ii) had simply warned Quon that he was forbidden from personal use of his pager and that his text messages could be reviewed for content.
The appellate court seemed to approve an employers ability to advise employees not to expect any privacy in employer-issued computers, cell phones, pagers and other devices. To do so, however, employers must implement and consistently adhere to clear written policies allowing the employer to search these devices and the contents of e-mails and text messages sent or received by them.
The Supreme Court will resolve several questions raised by this case. First, does an employee have a reasonable expectation of privacy in text messages transmitted on employer-issued devices? If so, does that change if there is a formal policy prohibiting personal use of the devices? Second, do the same privacy rules apply to third parties (non-employees) who text an employee on an employer-issued pager?
The Supreme Court is expected to hear the case in the Spring. Its decision should have a considerable impact on rules and regulations governing employee-privacy issues in new technologies.
While awaiting the Court's decision, employers are strongly encouraged to review policies applicable to employer provided equipment to ensure they cover new technologies, and to implement such policies with consistency. If these policies do not clearly state that the equipment is subject to review and audit (thereby destroying any expectation of privacy), the employee-users of the equipment (and perhaps those with whom they communicate) may indeed enjoy an enforceable expectation of privacy.
