In a decision that will directly impact more than 20 million employees of state and local governments, the United States Supreme Court late last week unanimously ruled that a government employer has a right to audit text messages sent on an employer-issued pager as long as it has “a legitimate, work-related purpose” for the audit. 

The decision was the Supreme Court’s first foray into the realm of employee privacy rights in their electronic communications at a time when it has become standard practice for many employers to supply their employees with employer-owned laptops, Blackberries, pagers and other electronic devices. 

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.

In reversing the Ninth Circuit by ruling in favor of the City, the Supreme Court assumed that Quon had a reasonable expectation of privacy.  Nonetheless, the Court held that the City’s search was not unduly intrusive and, therefore, constitutional under the Fourth Amendment’s right to be free from unreasonable searches and seizures.  According to the Supreme Court, the City had a legitimate interest in ensuring that employees were not being forced to pay out of their own pockets for work-related expenses, or on the other hand, that the City was not paying for extensive personal communications.  The Supreme Court also noted that the possibility of a less intrusive search, as outlined by the Ninth Circuit, did not make the search that took place unreasonable.  The Supreme Court emphasized that the ruling was narrow, given the pace of technological and cultural change.  According to the Supreme Court, it “must proceed with care when considering the whole concept of privacy expectations in communications made on electronic equipment owned by a government employer….Cellphone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self-identification.  On the other hand, the ubiquity of those devices has made them generally affordable, so one could counter that employees who need cellphones or similar devices for personal matters can purchase and pay for their own”. 

Although the decision does not apply to those who are employed by private companies, the Supreme Court has generally followed similar standards in analyzing privacy claims against private employers.

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.