Navigating the Changing Technological Landscape

In City of Ontario v. Quon, 560 U.S. ___ (2010), the U.S. Supreme Court held that a government employer's search of an employee's communications on an employer-issued pager was reasonable under the circumstances and, therefore, did not violate the Fourth Amendment of the United States Constitution. The Court's narrowly tailored decision underscores that cases in the area of employee privacy will continue to be highly fact-sensitive. (Internet Law & Strategy broke news of the ruling when it was issued. See, “Online Exclusive: Text Search Reasonable, Says Supreme Court,” available at www.ljnonline.com/issues/ljn_internetlaw/8_6/news/153860-1.html.) Even so, Quon offers useful guidance with respect to up-to-the-minute issues in this area, and reaffirms some preventative measures that forward-looking employers should already have in place.

The Case

In Quon, the City of Ontario, CA (“City”), issued pagers capable of sending and receiving text messages to members of the Ontario Police Department's (“OPD”) SWAT team, including the plaintiff Sergeant Jeff Quon, for the stated purpose of helping the SWAT team mobilize and respond to emergency situations. Prior to purchasing the pagers, the City announced a “Computer Usage, Internet and E-Mail Policy,” which reserved all rights to monitor City employees' computer, Internet, and e-mail activity with or without notice, and explicitly stated that employees “should have no expectation of privacy or confidentiality when using these resources.” While the written policy did not specifically mention use of the pagers to send or receive non-work-related text messages, the City made clear verbally and in writing to employees, including Quon, that pager text messages would be treated the same as e-mails under the policy.

Arch Wireless (“Arch”), a private company, provided wireless service to the pagers such that a text message from an individual pager would be transmitted to a receiving station owned by Arch, and then routed to the recipient. Therefore, unlike e-mails sent on a City computer, the text message would never pass through or be retained on computers or data servers owned by the City. Pursuant to the contract between Arch and the City, the City would be charged an additional fee for usage of each pager in excess of an allotted number of characters sent or received each month.

Excessive Text Messages

Shortly after the pagers were distributed to the members of the OPD, it became apparent that certain officers, including Quon, were continually exceeding their monthly character allotment for text message use. OPD notified Quon of the overage charges, and reminded him that his text messages could be audited. At first, as an alternative to an audit, Quon was permitted by the lieutenant responsible for the contract between Arch and the City to simply write a check to reimburse the City for the overage fees. However, after Quon and another officer continued to exceed the character allotment, the OPD Chief decided to investigate whether the monthly character allotment was too low (i.e., whether officers like Quon were unfairly paying overage charges for work-related messages). Accordingly, the OPD requested Arch to provide transcripts of text messages sent by Quon and other officers who had exceeded the character allotment over a particular two-month time span.

Review of the Transcripts

Upon review of the transcripts, it was discovered that a majority of the messages sent and received by Quon were not related to work, and some were of a sexually explicit nature. Subsequently, the matter was referred to the OPD's internal affairs unit for investigation, and an internal affairs officer reviewed these messages after redacting all messages that were sent or received by Quon while he was off-duty. Based upon the results of the investigation, Quon was disciplined.

The Suit

Quon brought suit against the City, the OPD, and the OPD's Chief, alleging, among other claims, a violation of his Fourth Amendment right to be free of unreasonable government search and seizure. The District Court held that the defendants did not violate the Fourth Amendment, and the United States Court of Appeals for the Ninth Circuit reversed, finding that the scope of the search was not reasonable under the circumstances.

The Decision

In what can be viewed as a favorable decision for employers across the country, the U.S. Supreme Court ultimately reversed the Ninth Circuit and upheld the OPD's search of the transcript of Quon's text messages. While the Court's decision does provide guidance for employers, as will be discussed below, it is perhaps less instructive than it could have been. Specifically, the Court recognized the opportunity to clarify the parameters of an employee's privacy expectations with respect to communications on electronic equipment owned by a government employer, but cautiously reasoned that “[t]he judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear.” In fact, in light of the lightning fast pace of evolution of the technology of information transmission, the Court expressed trepidation that “[a]t present, it is uncertain how workplace norms, and the law's treatment of them, will evolve.” Therefore, the Court declined to establish any “far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices.”

Instead, the Court chose to assume for the purposes of its analysis that:

1. Quon had a reasonable expectation of privacy in the subject text messages;
2. The review of the transcript by the OPD constituted a “search” under existing Fourth Amendment jurisprudence; and
3. The principles applicable to the search of a government employee's office “apply with at least the same force” to a government employer's search of the employee's electronic communications.

Having stated these assumptions, the Court then focused its narrow inquiry on whether the OPD's review of the transcription of Quon's text messages satisfied the “special needs of the work place” exception to the warrant requirement.

Proceeding with this inquiry, the Court first determined that the search of the transcript was “justified at its inception” and pointed to the OPD's legitimate concern that officers were either unfairly being forced to pay out of pocket for work-related expenses, or that certain officers were improperly using the pagers for personal use. Next, the Court found that the scope of the search was reasonable and not “excessively intrusive.” In this respect, the Court noted that the OPD only requested transcripts for two months, and the transcripts were redacted to excise messages that were sent and received while Quon was off-duty. The Court also referenced the fact that Quon was certainly aware that his pager use was subject to monitoring by his employer, especially given the fact that the pagers were issued to the SWAT team in order to assist it in response to a crisis, and, for this reason, he could have anticipated that the pager messages would be audited to assess the team's job performance. From the OPD's perspective, the Court observed that the audit of Quon's pager messages would not be expected to intrude on Quon's purely personal matters, and was much less intrusive than a search of Quon's personal e-mail account, or a wiretap on his home phone line.

Practical Guidance

The Quon decision offers the following practical guidance to employers who monitor employee electronic communications:

1. Use and Continually Update A Computer and Electronic Use Policy

The Court in Quon explicitly noted that “employer policies concerning communications will ' shape the reasonable expectations of their employees, especially to the extent that such policies are clearly communicated.” The Court, in fact, relied upon the City's Computer Usage, Internet and E-Mail Policy as a factor in concluding that the OPD's search was reasonable under the circumstances, even though the policy as written did not explicitly extend to text messages. Accordingly, it is critical that employers use and continually update a computer and electronic use policy that incorporates all types of electronic devices and equipment issued to company employees. Employers should also ensure that they have achieved the appropriate level of “saturation” (i.e., publication of the policy in handbooks, dissemination through company e-mail and separate memoranda, posting in common areas, etc.) of this policy, given the size and nature of the company and the number of people employed. Taking these measures will help afford the employer a strong defense to an employee's claim that he or she regarded certain electronic communications as being “private.”

2. Train Management to Avoid Subterfuge of Company Policy

The plaintiff in Quon argued that because a management-level officer initially allowed him to write a check to the City to cover the overage charges, this fact announced a change in the City's computer usage policy that supported his argument that he had a reasonable expectation of privacy in the messages. Although the Court refused to decide this issue, this highlights a potentially dangerous pitfall for employers. It is not enough to simply have a computer and electronic use policy ' managers must also be trained to enforce the policy, and not be permitted to deviate from the policy.

3. Ensure That Review of an Employee's Electronic Communication Is Not Over-Intrusive

Following Quon, employers should be aware that their search of an employee's electronic communication will likely be subject to scrutiny on multiple levels. They should be prepared to justify the necessity of the search for work-related purposes or investigation of work-related misconduct. Moreover, an employer should take care not to be over-intrusive in its search. As in Quon, the employer's search should be as minimally invasive as practicable. Quon also serves as a reminder that the overall reasonableness of the search is tied to the extent of the employee's expectation of privacy. Again, if the employer has taken the appropriate steps to update and saturate its computer and electronic use policy among the workforce, it will be afforded latitude to conduct a search that is in line with the stated policy, and possibly even beyond it.

Conclusion

Taking these relatively simple precautions will go a long way toward allowing your business to effectively monitor its employees, and avoid potential privacy issues down the road.

In City of Ontario v. Quon , 560 U.S. ___ (2010), the U.S. Supreme Court held that a government employer's search of an employee's communications on an employer-issued pager was reasonable under the circumstances and, therefore, did not violate the Fourth Amendment of the United States Constitution. The Court's narrowly tailored decision underscores that cases in the area of employee privacy will continue to be highly fact-sensitive. (Internet Law & Strategy broke news of the ruling when it was issued. See, “Online Exclusive: Text Search Reasonable, Says Supreme Court,” available at www.ljnonline.com/issues/ljn_internetlaw/8_6/news/153860-1.html.) Even so, Quon offers useful guidance with respect to up-to-the-minute issues in this area, and reaffirms some preventative measures that forward-looking employers should already have in place.

The Case

In Quon, the City of Ontario, CA (“City”), issued pagers capable of sending and receiving text messages to members of the Ontario Police Department's (“OPD”) SWAT team, including the plaintiff Sergeant Jeff Quon, for the stated purpose of helping the SWAT team mobilize and respond to emergency situations. Prior to purchasing the pagers, the City announced a “Computer Usage, Internet and E-Mail Policy,” which reserved all rights to monitor City employees' computer, Internet, and e-mail activity with or without notice, and explicitly stated that employees “should have no expectation of privacy or confidentiality when using these resources.” While the written policy did not specifically mention use of the pagers to send or receive non-work-related text messages, the City made clear verbally and in writing to employees, including Quon, that pager text messages would be treated the same as e-mails under the policy.

Arch Wireless (“Arch”), a private company, provided wireless service to the pagers such that a text message from an individual pager would be transmitted to a receiving station owned by Arch, and then routed to the recipient. Therefore, unlike e-mails sent on a City computer, the text message would never pass through or be retained on computers or data servers owned by the City. Pursuant to the contract between Arch and the City, the City would be charged an additional fee for usage of each pager in excess of an allotted number of characters sent or received each month.

Excessive Text Messages

Shortly after the pagers were distributed to the members of the OPD, it became apparent that certain officers, including Quon, were continually exceeding their monthly character allotment for text message use. OPD notified Quon of the overage charges, and reminded him that his text messages could be audited. At first, as an alternative to an audit, Quon was permitted by the lieutenant responsible for the contract between Arch and the City to simply write a check to reimburse the City for the overage fees. However, after Quon and another officer continued to exceed the character allotment, the OPD Chief decided to investigate whether the monthly character allotment was too low (i.e., whether officers like Quon were unfairly paying overage charges for work-related messages). Accordingly, the OPD requested Arch to provide transcripts of text messages sent by Quon and other officers who had exceeded the character allotment over a particular two-month time span.

Review of the Transcripts

Upon review of the transcripts, it was discovered that a majority of the messages sent and received by Quon were not related to work, and some were of a sexually explicit nature. Subsequently, the matter was referred to the OPD's internal affairs unit for investigation, and an internal affairs officer reviewed these messages after redacting all messages that were sent or received by Quon while he was off-duty. Based upon the results of the investigation, Quon was disciplined.

The Suit

Quon brought suit against the City, the OPD, and the OPD's Chief, alleging, among other claims, a violation of his Fourth Amendment right to be free of unreasonable government search and seizure. The District Court held that the defendants did not violate the Fourth Amendment, and the United States Court of Appeals for the Ninth Circuit reversed, finding that the scope of the search was not reasonable under the circumstances.

The Decision

In what can be viewed as a favorable decision for employers across the country, the U.S. Supreme Court ultimately reversed the Ninth Circuit and upheld the OPD's search of the transcript of Quon's text messages. While the Court's decision does provide guidance for employers, as will be discussed below, it is perhaps less instructive than it could have been. Specifically, the Court recognized the opportunity to clarify the parameters of an employee's privacy expectations with respect to communications on electronic equipment owned by a government employer, but cautiously reasoned that “[t]he judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear.” In fact, in light of the lightning fast pace of evolution of the technology of information transmission, the Court expressed trepidation that “[a]t present, it is uncertain how workplace norms, and the law's treatment of them, will evolve.” Therefore, the Court declined to establish any “far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices.”

Instead, the Court chose to assume for the purposes of its analysis that:

1. Quon had a reasonable expectation of privacy in the subject text messages;
2. The review of the transcript by the OPD constituted a “search” under existing Fourth Amendment jurisprudence; and
3. The principles applicable to the search of a government employee's office “apply with at least the same force” to a government employer's search of the employee's electronic communications.

Having stated these assumptions, the Court then focused its narrow inquiry on whether the OPD's review of the transcription of Quon's text messages satisfied the “special needs of the work place” exception to the warrant requirement.

Proceeding with this inquiry, the Court first determined that the search of the transcript was “justified at its inception” and pointed to the OPD's legitimate concern that officers were either unfairly being forced to pay out of pocket for work-related expenses, or that certain officers were improperly using the pagers for personal use. Next, the Court found that the scope of the search was reasonable and not “excessively intrusive.” In this respect, the Court noted that the OPD only requested transcripts for two months, and the transcripts were redacted to excise messages that were sent and received while Quon was off-duty. The Court also referenced the fact that Quon was certainly aware that his pager use was subject to monitoring by his employer, especially given the fact that the pagers were issued to the SWAT team in order to assist it in response to a crisis, and, for this reason, he could have anticipated that the pager messages would be audited to assess the team's job performance. From the OPD's perspective, the Court observed that the audit of Quon's pager messages would not be expected to intrude on Quon's purely personal matters, and was much less intrusive than a search of Quon's personal e-mail account, or a wiretap on his home phone line.

Practical Guidance

The Quon decision offers the following practical guidance to employers who monitor employee electronic communications:

1. Use and Continually Update A Computer and Electronic Use Policy

The Court in Quon explicitly noted that “employer policies concerning communications will ' shape the reasonable expectations of their employees, especially to the extent that such policies are clearly communicated.” The Court, in fact, relied upon the City's Computer Usage, Internet and E-Mail Policy as a factor in concluding that the OPD's search was reasonable under the circumstances, even though the policy as written did not explicitly extend to text messages. Accordingly, it is critical that employers use and continually update a computer and electronic use policy that incorporates all types of electronic devices and equipment issued to company employees. Employers should also ensure that they have achieved the appropriate level of “saturation” (i.e., publication of the policy in handbooks, dissemination through company e-mail and separate memoranda, posting in common areas, etc.) of this policy, given the size and nature of the company and the number of people employed. Taking these measures will help afford the employer a strong defense to an employee's claim that he or she regarded certain electronic communications as being “private.”

2. Train Management to Avoid Subterfuge of Company Policy

The plaintiff in Quon argued that because a management-level officer initially allowed him to write a check to the City to cover the overage charges, this fact announced a change in the City's computer usage policy that supported his argument that he had a reasonable expectation of privacy in the messages. Although the Court refused to decide this issue, this highlights a potentially dangerous pitfall for employers. It is not enough to simply have a computer and electronic use policy ' managers must also be trained to enforce the policy, and not be permitted to deviate from the policy.

3. Ensure That Review of an Employee's Electronic Communication Is Not Over-Intrusive

Following Quon, employers should be aware that their search of an employee's electronic communication will likely be subject to scrutiny on multiple levels. They should be prepared to justify the necessity of the search for work-related purposes or investigation of work-related misconduct. Moreover, an employer should take care not to be over-intrusive in its search. As in Quon, the employer's search should be as minimally invasive as practicable. Quon also serves as a reminder that the overall reasonableness of the search is tied to the extent of the employee's expectation of privacy. Again, if the employer has taken the appropriate steps to update and saturate its computer and electronic use policy among the workforce, it will be afforded latitude to conduct a search that is in line with the stated policy, and possibly even beyond it.

Conclusion

Taking these relatively simple precautions will go a long way toward allowing your business to effectively monitor its employees, and avoid potential privacy issues down the road.