Supreme Court Issues Opinion on Work Place Privacy

Today, the Court decided Ontario v. Quon.  At issue was the right of the City of Ontario to read text messages sent by its employee’s on City-issued pagers. In a nutshell, the City issued employees pagers, noticed that the number of messages sent exceeded the plan (although the employees personally paid for overages), and thus the City reviewed to messages sent by Quon and others to decide whether the plan should be expanded or whether employees were using the pagers for personal, and not work-related, matters. The City discovered that Quon was using the pager primarily for personal business and disciplined him. 

In adjudicating the 4th Amendment Claim, the High Court assumed without deciding that Quon had a reasonable expectation of privacy in his text messages and that there was a “search” of his messages.  The opinion focused on whether the search was reasonable under the circumstances.  This standard was used because under the Court’s jurisprudence not all warrantless searches are forbidden.  For example, the Court has held that the “special needs” of the work place is an exception.  (Don’t bother searching for this exception in the text of the Amendment—it ain’t there). 

The Court held that because the search was motivated by a legitimate work-related purpose (assessment of the plan and possible need to expand it) and because the search was not excessive in scope (the City looked at only two months of messages where Quon exceeded the plan), the search was reasonable under the case law. 

Bottom line: If you work for a government, remember that your e-mails and text messages on government-issued phones, computers, and pagers can be viewed by your bosses.  Even if you have not signed an acknowledgment that the employer can review these matters, Quon demonstrates that it is not hard to craft a reason for searching that is “reasonable” and will pass Court review.  Protect your privacy by using your personal phone or BlackBerry for personal matters and the government-issued device for work matters.  Your personal electronics are probably better than what the government issues anyway, so don’t take chances.