Supreme Court to Review Text Message Case; Primarily of Interest to Public Employers

Yesterday the United States Supreme Court agreed to consider whether a police officer has a reasonable expectation of privacy in text messages sent using his department-issued pager.  The Ninth Circuit Court of Appeals ruled earlier this year that the officer had such a privacy right.  Click here to read the opinion below in City of Ontario, California v. Quon

In Quon, the employer, the City of Ontario, distributed to its police officers pagers with texting capability.  The City then audited the use of text messages by the officers to determine whether overage charges may have been caused by personal use of the service.  During the audit, it discovered that Quon had sent several personal, sexually explicit text messages.  Quon sued the City, asserting violations of his right to privacy under the Fourth Amendment of the United States Constitution as well as under Article I, Section I of the California Constitution.  The District Court dismissed Quon's suit after a jury found that the City conducted the audit to investigate usage, not misconduct.  The Ninth Circuit reversed, holding that the City violated Quon's constitutional privacy rights by reading his private texts, and the City's articulated policies did not give Quon sufficient notice that his texts could by read by others to overcome his privacy rights. 

What does this mean for employers?  For most private employers, this case will have little or no impact.  Federal privacy rights, such as those that come from the Fourth Amendment, apply only to public employers and not to private ones.  Private California employers should watch out:  California courts have sometimes applied state constitutional rights to private employers, and could rule that their employees have privacy rights in work-provided email and text systems.  Still, it is a good practice for all employers, public and private and in all states, to adopt and distribute policies clearly stating that employees have no expectation of privacy in communications they make using employer-provided equipment and systems, such as email, text messages, cell phones, etc. 

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