Supreme Court to Review Employee Text Messaging Privacy Case

Natalie Klyashtorny, Esq. on 03/04/2010

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Text messaging has become one of the primary modes of communication for many of us.  In December, the United States Supreme Court announced that it will hear a case involving the issue of whether a SWAT team member of a California municipality had a reasonable expectation of privacy in text messages he transmitted on his pager.

In City of Ontario v. Quon, Sergeant Jeff Quon was told that the department's email policy - which gave the department the right to monitor e-mail, prohibited personal use of email, and informed employees their email messages were not private – also applied to pagers. However, the lieutenant in charge of administering employee use 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 eight 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 a far-reaching impact due to the prevalent use of employer-issued Blackberrys and other electronic devices.