Think Twice Before Reading Your Employees' Text Messages

While there was no specific written policy concerning the use of the pagers, the city's contract with Arch Wireless provided that each pager would be allotted 25,000 characters per month, after which the city would pay overage charges. Thus, when an officer went over his allotted amount, he would be asked to write a check for the difference. Officers were told that if they paid the overages, their text messages would not be audited. After several officers went over their allotment and the lieutenant became tired of being a “bill collector,” the Chief of Police directed the lieutenant to “request the transcripts of those pagers for auditing purposes ' to determine if the messages were exclusively work-related, thereby requiring an increase in the number of characters officers were permitted, which had occurred in the past, or if they were using the pagers for personal matters.” The transcripts were reviewed and it was determined that they contained personal messages that were often sexually explicit.

The Case

The Plaintiffs, four police officers, then commenced an action in federal district court against both Arch Wireless and the City of Ontario as well as the Chief of Police. Plaintiffs claimed that Arch Wireless improperly turned over the transcripts of the text messages to the Police Department. They also claimed that their employer violated their Fourth Amendment Rights and privacy rights, under the California Constitution, when their personal text messages were reviewed by the Department.

Initially, the court concluded that Arch Wireless improperly turned over the text messages. Arch Wireless was deemed to be an Electronic Communication Service. (“ECS”) because it assisted in the transmission of data. An ECS, as opposed to an entity that merely stores electronic data, can only release data to the addressee or intended recipient. Thus, Arch was found to have unlawfully divulged the contents of the text messages to the city. With regard to the city, to determine the legality of the search, the court held that it would first have to determine if the employees had a reasonable expectation of privacy in their text messages. Assuming there was a reasonable expectation of privacy, it would then have to determine if the search was justified at its inception and whether the scope of the search was reasonably related to the scope of the circumstances justifying the search.

The court held that the officers did in fact have a reasonable expectation of privacy in their text messages. This was based on the fact that the officers were told that if they paid for any overages, their messages would not be reviewed. That is, despite the fact that officers had signed an Internet policy stating that computer usage could be monitored and attended a meeting in which they were informed that this policy applied to pagers, the fact that a high level officer had stated there would be no monitoring if the overages were paid was enough to create a reasonable expectation of privacy. Further, officers had gone over the limit several times before, had paid the overage charges and had not been audited. This, according to the court, also created a legitimate expectation of privacy. Further, the fact that these text messages could be considered public records under California Public Records Act would not defeat any reasonable expectation because such a request was considered to be “remote.”

In addition, the court held that the scope of the search was not reasonable because there were less intrusive ways to conduct the search. The officers could have been warned in advance that they would be prohibited from using the pager if they went over the limit or that going forward it would review text messages if they exceeded the limit. Also, the city could have reviewed the “to and from” portions of the e-mail as there is no expectation of privacy in the addressees. The officers also could have been asked to count the characters themselves to determine if they went over the limit.

Rather, the court concluded, by reviewing the transcripts itself, the Department engaged in an investigation deemed to be “excessively intrusive.” This conclusion was reached despite the fact that a trial had been held at which the jury determined that the intent of officers performing the search was
to determine “the efficacy of the existing character limits to ensure that officers were not being required to pay for work-related expenses.” The court held that this was wrong as a matter of law and concluded that the scope of the search was unreasonable.

Analysis

The court's opinion is significant in that it permits what it considers to be an “operational reality” to trump a written policy. That is, even though the Department had an Internet policy that stated e-mails should not be considered private, the fact that a senior officer explained that text messages would not be reviewed if the overage charges were made was deemed to be controlling. Perhaps if the Department's written policy specifically included language on text messages and also provided that it could not be changed orally, a different result may have occurred. Employers nevertheless should take care to inform supervisors that their comments can be binding and, therefore, they should not deviate from established written policies.

This new ruling appears to carve out new privacy protection for employees, especially those who use employer-supplied cell phones and pagers. Even though the Department owned the devices, the messaging was not considered to be the property of the Department. This was due to the fact that the text messaging was stored off-site with a third party and, therefore, was not considered to be the property of the Department. In many situations, e-mails are stored with the employer, thus distinguishing such cases from Quon. Also, this case involved a governmental agency as opposed to a private employer. Here, constitutional restraints clearly applied. Of course, federal and state statutes would still apply to both public and private employers.

Conclusion

The court's decision is Quon is a warning bell for employers. Employers can simply no longer justify searches based on the fact that employees are using employer- provided equipment. Clear and specific policies, coupled with training of personnel, are the keys to avoiding costly and time-consuming litigation.

Mark N. Reinharz, a member of this newsletter's Board of Editors, is a member of Bond, Schoeneck & King, PLLC. He represents management in all areas of labor and employment law.

A recent decision by the Ninth Circuit Court of Appeals has provided a loud wake-up call to employers who wish to monitor employee communications. In Quon v. Arch Wireless Operating Co, Inc. et al., 529 F.3d 892 (9th Cir. 2008), the court held that the City of Ontario, CA, violated the state and federal constitutional privacy rights of its police officers when it reviewed their personal text messages.

History

During late 2001 or early 2002, the City of Ontario provided 20 two-way alphanumeric pagers to various officers in the Police Department. These pagers enabled the officers to send text messages to one another or other individuals outside of the Department. The city did not have a specific written policy directed toward text messaging per se. It did, however, have a general “Computer Usage, Internet and e-Mail Policy” stating that city-owned computers and all associated equipment could only be used for city business. It further stated that access to Internet sites and e-mail for personal use was not permitted and should not be considered confidential. After the pagers were issued, a meeting was held in which employees were told that the text message communications were considered to be e-mail and would fall under the existing computer policy.

While there was no specific written policy concerning the use of the pagers, the city's contract with Arch Wireless provided that each pager would be allotted 25,000 characters per month, after which the city would pay overage charges. Thus, when an officer went over his allotted amount, he would be asked to write a check for the difference. Officers were told that if they paid the overages, their text messages would not be audited. After several officers went over their allotment and the lieutenant became tired of being a “bill collector,” the Chief of Police directed the lieutenant to “request the transcripts of those pagers for auditing purposes ' to determine if the messages were exclusively work-related, thereby requiring an increase in the number of characters officers were permitted, which had occurred in the past, or if they were using the pagers for personal matters.” The transcripts were reviewed and it was determined that they contained personal messages that were often sexually explicit.

The Case

The Plaintiffs, four police officers, then commenced an action in federal district court against both Arch Wireless and the City of Ontario as well as the Chief of Police. Plaintiffs claimed that Arch Wireless improperly turned over the transcripts of the text messages to the Police Department. They also claimed that their employer violated their Fourth Amendment Rights and privacy rights, under the California Constitution, when their personal text messages were reviewed by the Department.

Initially, the court concluded that Arch Wireless improperly turned over the text messages. Arch Wireless was deemed to be an Electronic Communication Service. (“ECS”) because it assisted in the transmission of data. An ECS, as opposed to an entity that merely stores electronic data, can only release data to the addressee or intended recipient. Thus, Arch was found to have unlawfully divulged the contents of the text messages to the city. With regard to the city, to determine the legality of the search, the court held that it would first have to determine if the employees had a reasonable expectation of privacy in their text messages. Assuming there was a reasonable expectation of privacy, it would then have to determine if the search was justified at its inception and whether the scope of the search was reasonably related to the scope of the circumstances justifying the search.

The court held that the officers did in fact have a reasonable expectation of privacy in their text messages. This was based on the fact that the officers were told that if they paid for any overages, their messages would not be reviewed. That is, despite the fact that officers had signed an Internet policy stating that computer usage could be monitored and attended a meeting in which they were informed that this policy applied to pagers, the fact that a high level officer had stated there would be no monitoring if the overages were paid was enough to create a reasonable expectation of privacy. Further, officers had gone over the limit several times before, had paid the overage charges and had not been audited. This, according to the court, also created a legitimate expectation of privacy. Further, the fact that these text messages could be considered public records under California Public Records Act would not defeat any reasonable expectation because such a request was considered to be “remote.”

In addition, the court held that the scope of the search was not reasonable because there were less intrusive ways to conduct the search. The officers could have been warned in advance that they would be prohibited from using the pager if they went over the limit or that going forward it would review text messages if they exceeded the limit. Also, the city could have reviewed the “to and from” portions of the e-mail as there is no expectation of privacy in the addressees. The officers also could have been asked to count the characters themselves to determine if they went over the limit.

Rather, the court concluded, by reviewing the transcripts itself, the Department engaged in an investigation deemed to be “excessively intrusive.” This conclusion was reached despite the fact that a trial had been held at which the jury determined that the intent of officers performing the search was
to determine “the efficacy of the existing character limits to ensure that officers were not being required to pay for work-related expenses.” The court held that this was wrong as a matter of law and concluded that the scope of the search was unreasonable.

Analysis

The court's opinion is significant in that it permits what it considers to be an “operational reality” to trump a written policy. That is, even though the Department had an Internet policy that stated e-mails should not be considered private, the fact that a senior officer explained that text messages would not be reviewed if the overage charges were made was deemed to be controlling. Perhaps if the Department's written policy specifically included language on text messages and also provided that it could not be changed orally, a different result may have occurred. Employers nevertheless should take care to inform supervisors that their comments can be binding and, therefore, they should not deviate from established written policies.

This new ruling appears to carve out new privacy protection for employees, especially those who use employer-supplied cell phones and pagers. Even though the Department owned the devices, the messaging was not considered to be the property of the Department. This was due to the fact that the text messaging was stored off-site with a third party and, therefore, was not considered to be the property of the Department. In many situations, e-mails are stored with the employer, thus distinguishing such cases from Quon. Also, this case involved a governmental agency as opposed to a private employer. Here, constitutional restraints clearly applied. Of course, federal and state statutes would still apply to both public and private employers.

Conclusion

The court's decision is Quon is a warning bell for employers. Employers can simply no longer justify searches based on the fact that employees are using employer- provided equipment. Clear and specific policies, coupled with training of personnel, are the keys to avoiding costly and time-consuming litigation.

Mark N. Reinharz, a member of this newsletter's Board of Editors, is a member of Bond, Schoeneck & King, PLLC. He represents management in all areas of labor and employment law.