This spring, the U.S. Supreme Court will hear oral arguments to a case on whether workers have a “reasonable expectation of privacy” when sending personal text messages on company-owned mobile devices.
The case, City of Ontario v. Quon, involves several SWAT team members who sent sexually explicit text messages on government-issued pagers. The Supreme Court will determine, in part, whether the California officers had a reasonable expectation of privacy when using the pagers, and if the police department had an official no-privacy policy that was undermined by a lieutenant who told the officers that they could use the pagers for personal matters.
A Supreme Court decision, whether it’s in favor of the police department or the SWAT team members, will probably raise new questions about privacy rights in the workplace, especially for public employers.
New Jersey-based attorney Joseph Paranac, Jr. explains that the Quon case is a state action, which “means it is covered under Fourth Amendment protections against unreasonable searches and seizures. Public employees have a greater expectation of privacy than their private-sector counterparts.”
Still, the lawsuit points to the “rising prominence of cyber-liability in our Twittering, Facebooking, iPhone-enabled age,” adds Paranac, who is a member in the labor and employment practice group at LeClairRyan.
The appeals court case
In June 2008, the 9th U.S. Circuit Court of Appeals ruled that the Ontario police department violated SWAT team members’ Fourth Amendment rights when a police chief read the personal content of their text messages without their consent.
The police chief wanted to see if SWAT team member John Quon and three other members’ excessive use of their pagers resulted from personal or work-related activities.
The chief also asked the pager-service provider to hand over transcripts of archived messages sent to and from the SWAT team members. In reviewing the transcripts, he noticed that some personal text messages were sexual in nature.
The appeals court held that “the search of the [officers'] text message violated their Fourth Amendment and California constitutional privacy rights because they had a reasonable expectation of privacy in the context of text messages. Yet, [w]e do not endorse a monolithic view of text message users' reasonable expectation of privacy, as this is necessarily a context-sensitive inquiry,” the court added.
Under the Stored Communications Act, electronic communication providers cannot reveal the contents of text messages without authorization from the end user, even if the user is an employee.
The City of Ontario and USA Mobility Wireless, which acquired the pager-service company that released the text messages to the police department, appealed the 9th Circuit decision to the Supreme Court.
Paranac considers the Quon case the perfect example as to why employers should create straightforward policies on how their workers use company-owned computers, pagers and other electronic devices.
The police department had failed to create policies that specifically warned employees that their communications were subject to monitoring, Paranac notes. “Again and again, labor and employment attorneys have urged employers to adopt, clearly communicate and consistently enforce cyber-communications policies. This case illustrates precisely why," he adds.
Still, the courts are gradually recognizing that employees do not check their constitutional rights to privacy at the company’s door.
“For example, the case of Stengart v. Loving Care Agency, which is headed for the New Jersey Supreme Court, centered on whether e-mails sent by an employee to her lawyer using a company-owned computer are protected by the attorney-client privilege and therefore off-limits from monitoring,” Paranac explains. “In that case, the plaintiff used her password-protected Yahoo account, not the company’s e-mail system, to communicate with her attorney about a planned lawsuit against the company.”
Paranac believes that the nation’s high court “might well carve out similar exceptions for other sensitive communications, such as doctor-patient e-mails sent with employer-owned equipment. This puts employers in a quandary,” he explains.
The best that employers can do is to create and “enforce clear and consistent polices, because we are just at the beginning of a process in which the courts will likely shape the limits of those policies,” Paranac adds. “Until that process is complete, employers and employees alike will have to operate within a kind of cyber-liability grey area. The wheels of justice turn slowly, and both courts and lawmakers are struggling to catch up to technology.”
