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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