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 | June 21, 2010 |
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SUPREME COURT UPHOLDS PUBLIC EMPLOYER'S SEARCH OF TEXT MESSAGES
The Ruling. In a closely-watched case, the United States Supreme Court has ruled that a California city did not violate the Fourth Amendment to the United States Constitution when it searched text messages sent to and from an alphanumeric pager issued to the employee by his employer, the City's Police Department.
The High Court's decision in City of Ontario v. Quon overturns a controversial decision two years ago by the Ninth Circuit U.S. Court of Appeals. The Ninth Circuit had ruled that the search of the employee's text messages was unlawful because it was overly intrusive and the City did not consistently follow a policy that clearly authorized such searches.
However, a unanimous Supreme Court opted for a more employer-friendly approach. It ruled that the search of text messages was reasonable because it "was motivated by a legitimate work-related purpose, and ... was not excessive in scope."
Notably, the plaintiffs in the Quon case also claimed that the search of text messages violated their right to privacy under the California Constitution. However, the Supreme Court did not review that claim. Instead, it sent the case back to the Ninth Circuit, which may revisit the California law privacy claim at a later time.
Background. The City of Ontario issued pagers to police department employees who were members of the "SWAT" team, to enable them to promptly respond to emergencies. When issued the pagers, Employees were told that they had to pay "overage" charges if they exceeded 25,000 characters per month on their pagers.
Sergeant Jeffrey Quon frequently exceeded the 25,000-character limit. Eventually, the officer in charge of the City's contract with the wireless company became "tired of being a bill collector." He persuaded the Police Chief to order a search of text messages to determine whether the 25,000-character limit was too low for work-related purposes.
The City did not obtain a search warrant and did not notify Quon before having the wireless company provide transcripts of the text messages Quon sent and received. The audit revealed that many of these messages were not only personal, but sexually explicit.
Quon, along with several others with whom he "texted," sued the police department in federal court for violation of their rights under the Fourth Amendment (to be free from an unlawful search and seizure), invasion of privacy and other claims.
A district court judge found that Quon had a reasonable expectation of privacy in his text messages, and held a jury trial to determine the City's purpose in searching the messages.
The jury found the City's motive was simply to determine whether the 25,000-character limit was too low. In light of this purpose, the judge ruled that the search was reasonable, and entered judgment in favor of the City.
The Ninth Circuit disagreed, reasoning that the search was unlawful since there were less intrusive ways for the City to determine the adequacy of the character limit.
What the Supreme Court Did. Significantly, the Supreme Court rejected the Ninth Circuit's idea that only the "least intrusive" search possible can be "reasonable" under the Fourth Amendment. The High Court found that the City had a "legitimate interest" in ensuring employees were not paying for work-related expenses out of their own pockets, or conversely that the City was not paying for employees' "extensive personal communications." According to the High Court, the search of transcripts "was an efficient and expedient way" of satisfying this purpose, and it was not overly intrusive because the City only reviewed a limited sample of Quon's messages.
The Supreme Court assumed, without deciding, that Quon had a reasonable expectation of privacy in his text messages. However, the Court found that this expectation was limited, because Quon had been told when the equipment was issued to him that his messages might be subject to auditing, and because the actions of law enforcement officers are frequently subjected to public scrutiny. This further supported the Court's conclusion that the search was reasonable in scope.
Applying The Decision To Your Workplace. Technically, the Supreme Court's decision in Quon only affects government workers. This is because the Fourth Amendment only applies to government action with respect to its employees. Private companies are not bound by the Fourth Amendment.
It is noteworthy that the California Constitution was amended years ago (by ballot initiative) to add a specific right of privacy. The California Supreme Court has ruled that this right of privacy applies to private and public sector employees alike. Thus, it remains to be seen whether California courts, or the Ninth Circuit, will follow the Supreme Court's reasoning in Quon when addressing texting and other privacy claims brought under California state law.
With the privacy question still in flux, it would be prudent for all California employers to consider implementing and consistently enforcing clear written policies allowing the employer to search any employer-issued computers, cell phones, Blackberries and other communication devices. This remains the best way under current law for employers to curtail any claim by employees that they have a so-called "legitimate expectation of privacy" when using these devices. If put on notice up front, the employees act at their peril and it's much more difficult for them to stake out a legitimate privacy claim.
We would be pleased to assist to your company in drafting or updating policies on employee usage of computers, cell phones, Blackberries and other employer-issued equipment.
For more information, call us today at (818) 508-3700, or visit us on the web, at www.brgslaw.com.
Sincerely,
Richard S. Rosenberg
Partner
BRG&S, LLP
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