In the past decade, it has become standard practice for many employers to supply their employees with employer-owned laptops, Blackberries, pagers and other electronic devices.  Though the obvious purpose of providing employees with these devices is for the employees to perform work-related activities, inevitably, employees have also utilized these devices for personal reasons, raising the issue of employees’ right to privacy in those activities. 

Last week, the United States Supreme Court heard oral arguments in a case involving the issue of whether a local law enforcement official had a reasonable expectation of privacy in text messages he transmitted on his employer-owned pager.

In City of Ontario v. Quon, Sergeant Jeff Quon was told that the department's e-mail policy -- which gave the department the right to monitor e-mail, prohibited personal use, and informed employees their messages were not private -- applied to pagers.  However, the lieutenant in charge of administering employee usage of pagers told employees that each pager was allotted 25,000 characters per month, and that employee use of pagers would not be audited as long as employees paid any overage charges for their accounts.  For 8 months, the department did not audit any employee's pager messages.  During this time, Quon exceeded the overage limit several times, and paid for his extra usage.  When Quon and another officer again went over the limit, the chief decided to audit the use of certain pagers (including Quon's) to figure out whether the city should increase its 25,000 character allotment and whether the officers were using their pagers for personal reasons.  During the audit, it was found that many of Quon's messages were personal and some were sexually explicit.

The Ninth Circuit Court of Appeals found in favor of Quon and against the City.  Notwithstanding the department’s written policy, the appellate court found that the lieutenant's statement that he would not read their messages, combined with his practice of actually not doing so for months, gave Quon and the others a reasonable expectation of privacy in their messages.  The appellate court also found that, even though the City's rationale for reading the messages was reasonable, it could have achieved that goal without reading the messages by, for example, warning Quon in advance that his pager would be audited, asking Quon to delete his personal messages, or asking Quon to count the work-related characters himself.  Because there were less intrusive ways to find out what was going on with the pager accounts, the appellate court held the City's decision to read the messages to be a privacy violation.

As Quon involves a government employer, the Fourth Amendment, prohibiting unreasonable searches and seizures, applies. The Fourth Amendment only protects government employees, so the Supreme Court's decision will not explicitly apply to the private sector.  However, it will be highly influential as courts have generally followed similar standards in analyzing privacy claims against private employers. Additionally, the decision is expected to have far-reaching impact due to the prevalent use of employer-issued Blackberries and other electronic devices. 

A decision in the case is expected in June 2010. 

This newsletter is a publication of Nochumson P.C. and is intended for general information only. It should not be construed as legal advice with respect to any particular situation, and readers should not act upon information contained in this newsletter without first consulting an attorney. Copyright © 2009.