Supreme Court Rules Public Employer's Search of Explicit Text Messages Justified

On June 17, 2010, the United States Supreme Court in City of Ontario v. Quon, Case No. 08-1332, unanimously ruled that a police department was justified in searching a SWAT team sergeant's sexually explicit text messages, which he had sent to his wife and mistress on a department-issued pager while at work. The Court overturned the Ninth Circuit Court of Appeals' ruling in Quon v. Arch Wireless Operating Co., 529 F3d 892 (9th Cir 2008), under which the public employer's search of the text messages violated the employee's reasonable expectations of privacy and constituted an unlawful search under the Fourth Amendment. The Court's decision marks the first time that the Court has weighed in on employees' use of high tech communications. Although private employers would not generally face the type of Fourth Amendment search claims that apply to public employers, courts across the country will likely look to the Court's decision for guidance in determining what constitutes reasonable conduct with respect to monitoring electronic communications.

In October 2001, the Ontario, California, police department issued pagers to all members of its SWAT team to aid in emergency mobilizations. The police department notified employees that use of the pagers was subject to its computer usage, Internet, and e-mail policy, but the policy did not specifically mention text messages. Still, the Supreme Court found that the police department had adequately informed the SWAT members that their texts would be treated as     e-mails and subject to inspection. The Court also particularly appreciated that the police department had found the text messages only when it was evaluating whether the character limits were sufficient to cover work-related communication and whether it was unfairly charging the employee for overages.

The Supreme Court emphasized that its decision should be construed narrowly. It did not address whether the employee had a reasonable expectation of privacy in the text messages; rather, the Court held only that the scope of the department's investigation was reasonable and done for a legitimate business purpose. The Court emphasized that it would wait for another case to assess the limits of employees' expectations of privacy in the digital arena.

As a result of the Court's decision, employers wishing to investigate work-related misconduct will be better protected from claims, especially when they take precautions to ensure that their intrusions on employees' privacy are reasonable. Such precautions may include:

• Adopting, disseminating, or updating technology policies;
• Conducting investigations only if they relate to legitimate business reasons, such as investigating work-related issues; and 
• Making it clear to employees that their at-work communications through employer-owned communications are subject to periodic or unexpected investigation.

Although the decision leaves open the question whether an employee has a reasonable expectation of privacy in electronic communications, this decision supports employers that are attempting to ensure that their employees properly use employer-issued equipment. Employers should still take care, however, as the Court's opinion is not a blank check for employers to conduct extensive and unwarranted investigations of employees' electronic communications. Employers, especially public employers, should evaluate the scope and business needs when reviewing employee communications and in particular personal communication.

Miller Nash is pleased to provide support to employers with questions about employee investigations and privacy, or other labor and employment issues.

Christopher Foster, a 2010 summer clerk in the Portland Miller Nash office, co-authored this article.

Related Areas
Employment Law and Labor Relations