For many years, both public and private employers have issued policies regarding the monitoring of computers, phones, and other work-issued electronic devices, and employees have been required to acknowledge receipt. Most of these policies empower employers to monitor and log all network activity including Internet and e-mail use, and attempt to strip employees of any expectation of privacy or confidentiality when using work-issued equipment. However, on December 14, 2009, the United States Supreme Court granted certiorari in City of Ontario v Quon.¹  The decision from the Court may diminish the impact of monitoring policies and change the legal landscape dramatically.

In late 2001, the City of Ontario, California, entered into a contract with Arch Wireless for two-way, alphanumeric pagers, and assigned pagers to Sergeants Jeff Quon and Steve Trujillo. Each pager was allotted 25,000 characters per month, and any overage charges were to be paid by the employee. Although the city did not have an official policy for text messaging, Lieutenant Steve Duke verbally informed the staff that the general “Computer usage, Internet and E-mail Policy” (the “Policy”) would cover the text messages. The Policy expressly provided that the use of city-owned computers, the Internet, e-mail, and “associated equipment” was limited to city business, that personal use of this equipment violated policy, and that the City reserved the right to monitor the use of this equipment. The Policy did not specifically refer to the types of pagers issued to Quon and Trujillo

Lieutenant Duke was the city administrator charged with overseeing the billing and contract details with Arch Wireless. Respondent Quon alleges Lt. Duke created an informal policy which allowed the employees to avoid auditing, so long as they paid the overage fees. Quon exceeded the monthly character limit several times, but he always paid the overages.

In August 2002, Lt. Duke complained to Police Chief Scharf about feeling like a “bill collector,” because Quon and another officer had regularly exceeded the monthly character limit. Chief Scharf asked Lt. Duke to determine if the messages were exclusively work-related—requiring an increase in the character limit -- or if the pagers were being used for personal reasons. The City requested copies of the transcripts from Arch Wireless, and Lt. Duke conducted the initial audit. The transcripts revealed that Quon had exceeded his monthly allotted characters by over 15, 000 characters and many of the messages were personal, and often sexually explicit. Lt. Duke reported the results of his audit to Chief Scharf and to Quon’s supervisor.

Respondent Quon and several others sued the City for depriving them of their privacy rights guaranteed by the Fourth Amendment to the United States Constitution. The district court found that the city’s informal policy of not monitoring messages as long as employees paid overage charges created a reasonable expectation of privacy. The court further found that the city’s review of Quon’s messages without his consent was excessively intrusive.²

Key findings:

The Ninth Circuit Court of Appeals affirmed the district court’s finding of a Fourth Amendment violation, and based its decision on several key concepts:

• Users of text messaging services have a reasonable expectation of privacy in the content of the messages stored on the service provider’s network absent consent from either a sender or recipient of the text messages.³
• The city’s informal policy that the text messages would not be audited, so long as the employee paid the overages, and the city’s failure to audit the messages, created an expectation of privacy in the employees.⁴ 
• Although Lt. Duke was not an official policymaker for the City, employees could reasonably rely on the informal policy he created because Lt. Duke was the commander in charge of administering the pagers.⁵ 
• The city’s search into the transcripts was not reasonable in scope regardless of Chief Scharf’s actual purpose or objective. The Ninth Circuit offered at least three less intrusive alternatives, which included:
  • Warning the employees incurring overages not to use pagers for personal reasons;
  • Asking employees to count the characters themselves; or
  • Asking employees to redact personal messages and allow the City to review the transcripts.⁶

Oral arguments took place before the Supreme Court on April 19, 2010, and a decision is not expected for several months. In the meantime, employers should be mindful that in the absence of specific policies that clearly apply to specific devices, some courts are recognizing employee privacy rights relating to their electronic communications in the workplace. In addition to promulgating specific policies and updating them when new electronic devices are introduced to the job, employers might further protect themselves from Quon-type problems by making sure their supervisors’ verbal representations are consistent with the employer’s written policies regarding the right to monitor electronic communications.

Assistant Attorney General

¹  ___ U.S. ____, 130 S. Ct. 1011 (2009).
²  The case also involved allegations against Arch Wireless and allegations of violations of the federal Stored Communications Act. These claims are not addressed in this article.
³  529 F.3d 892, 904 (9th Cir. 2008).
⁴  Id. at 906.
⁵  Id. at 907.
⁶  Id. at 908-09.