The U.S. Supreme Court on April 19 heard oral arguments in a case that could settle the contentious issue of whether employers have a right to read personal text messages employees send using employer-provided equipment and bandwidth.
At issue: an employer’s right to control use of its own equipment and an employee’s reasonable expectation of privacy.
It’s generally accepted that employers have the right to monitor any communication that occurs over their Internet and phone lines. But this marks the first time the Supreme Court has addressed the issue in the wireless and Internet age, and some observers say a decision in employees’ favor could alter the legal landscape.
The case, City of Ontario v. Quon, involves police officers who used city-issued pagers to send personal messages to one another — some of them quite racy. When officials in the Southern California police department wanted to find out how much texting concerned actual department operations, they asked their wireless provider to turn over all the records.
That’s when the department discovered almost 400 texts that SWAT Team Sgt. Jeff Quon said were personal—and none of the department’s business. Some went to his wife. Others went to his girlfriend.
Quon and three other officers sued, and the 9th Circuit Court of Appeals last year ruled in the officers’ favor, stating they had a “reasonable expectation of privacy” when they used the department’s pagers for personal communication.
The department, which has a policy stating that it “reserves the right to monitor and log all network activity including e-mail,” appealed to the Supreme Court. A ruling is expected in June.
Quon and his fellow officers appeared to get little sympathy from the Justices. Given the existence of the written policy and the fact that the pagers were property of the police department, several Justices wondered how the officers could have any expectation of privacy.
Quon’s attorney countered that the police department sent mixed messages, so to speak, by having an informal policy allowing limited personal use of the pagers as long as officers paid for minutes beyond those covered by the department’s wireless plan.
Soon-to-retire Justice John Paul Stevens suggested that the very nature of a SWAT Team members’ work argued against any privacy expectation. “I mean, wouldn’t you just assume that [the] whole universe of conversations by SWAT officers who were on duty 24/7 might well be reviewed by some members of the public or some of their superiors?” he asked.
Strictly speaking, the court’s decision will only affect public employers, because the Constitution’s Fourth Amendment prohibition on illegal searches applies only to the government.
But that doesn’t mean other employers can put their heads in the sand.
“The Fourth Amendment doesn’t apply to private-sector employers,” noted Michael W. Fox of the Ogletree Deakins law firm. “On the other hand, any comment that the court makes about employees’ expectations of privacy when they use employer-supplied computers and BlackBerries could have a ripple effect on how courts view other cases under common-law privacy claims.”
Advice: Despite uncertainty about how this case will turn out, continue to enforce your policy on employee use of company-provided computers and other devices. Unless the Supreme Court says otherwise, employers can still monitor e-mail sent to and from company computers and servers.
The key: a policy that makes it clear that transmittals are not private. For example, warn employees they may not use company computers or other communications systems in anything but a professional manner. Ban all obscene, explicit or harassing communication, including pictures, drawings and videos.
Online resources: HR Specialist Premium Plus subscribers can download two sample policies that apply in cases like Quon:
