Search of Employee Text Messages Held to Violate Fourth Amendment
By Shannon Going and Vanessa Whang
In Quon, et al. v. Arch Wireless, City of Ontario, the Ontario Police Department, et al. 2008 WL 2440559 (9th Cir. 2008), the Ninth Circuit Court of Appeals recently found a public employer (the Ontario Police Department) violated the Fourth Amendment when the Police Chief and others read an employee's text messages on employer-provided two-way pagers. The Police Department had a general computer usage policy applicable to all employees mandating that City-owned computers and "all associated equipment" was limited to Police Department-related business, and that users should have no expectation of privacy or confidentiality when using email or the Internet. The computer usage policy clearly stated that personal use of these technologies was a “significant violation.” Although there was no official policy regarding text-messaging, the Police Department argued that employees were informed that their text messages would be handled according to the terms of the computer usage policy, but Plaintiff Quon asserted that he did not remember such a warning. Regardless, the Lieutenant who supervised the two-way pagers communicated to employees that their text messages would only be reviewed if there were charges for over use and the employees refused to pay the overcharges, at which time they would have to review the text messages to determine the reason for the over use – personal or business.
Despite handling the overage charges for several months in accordance with the informal policy described above, the Lieutenant became frustrated with the repeated overage charges for plaintiff and other employees, and decided to review transcripts of plaintiff’s text messages to determine whether the monthly overage charges stemmed from work-related or personal use, even though the plaintiff had not refused to pay for the overage charges. The transcripts revealed personal messages sent by the plaintiff to his wife and fellow employees, some of which were sexually explicit in nature. The plaintiff and others who were the recipients of plaintiff’s text messages brought suit alleging violation of their privacy rights under the Fourth Amendment and Article I, Section 1 of the California Constitution. Of note, several defendants were named including the police chief and another sergeant who read the text messages.
The district court employed a two-pronged inquiry to determine whether a privacy violation occurred, looking at both the plaintiff’s reasonable expectation of privacy in the messages and the reasonableness of the search that revealed the contents of those messages. The district court concluded as a matter of law that the plaintiff had a reasonable expectation of privacy regarding the messages but a jury thereafter determined that no violation had occurred because the search conducted was reasonable as the intent of the officer was not to discover misconduct, but rather to determine the basis for the overage charges. The plaintiff appealed. Upon review, the Ninth Circuit agreed that the plaintiff had a reasonable expectation of privacy in the text messages because of the “operational reality” regarding the way in which overage charges had been previously treated. However, the Ninth Circuit disagreed that the search was reasonable, holding that even though the search was intended to serve a valid purpose, the scope of the search was too broad. The Court stated that there were less intrusive means of finding the desired information, such as simply asking the plaintiff to redact the personal content of any text messages so that the department could still obtain the desired information.
Although the Quon decision is largely limited to its facts and involved a public employer, there are still valuable lessons from this decision to learn for all employers, including: 1) employers should establish a specific text-messaging policy notifying employees that text messages on company issued phones, pagers, other electronic devices are not private and that the company can conduct searches of such phone, pagers, electronic devices, etc. at any time; or (2) if the employer already has an existing internet/computer usage policy, issue a written memo that states the current internet/computer policy extends to all electronically stored information on any company property and therefore employees should not have an expectation of privacy in such information. With either option, the employer should make sure to obtain the employee’s signature, acknowledging that he/she has received either the text-message policy or notice that the existing internet/computer policy encompasses all electronically stored information. Employers should also ensure thorough disciplinary action if necessary, and that the actual application of the written policy in the workplace is consistent with the language of the policy so as to reduce the creation of any informal policy that could arguably increase employees’ expectation of privacy. Finally, employers should also limit the scope of any searches to the least intrusive means possible to obtain the desired information.