The Supreme Court reached a 9-0 decision last week in City of Ontario v. Quon, finding that the defendant had not violated the Fourth Amendment when it searched the pager messages of its employee, because (1) the search was motivated by a legitimate work-related purpose, and (2) because it was not excessive in scope.
Although Quon involved a government-employer, which raises distinct Constitutional issues that are not present when a private-employer is involved, the Court’s opinion suggests that this standard may also be applicable outside of the government-employer context. In addressing some of the concerns voiced by Justice Scalia, Justice Kennedy, for the majority, stated that the standard used in Quon – that the “employer had a legitimate reason for the search, and that the search was not excessively intrusive in light of that justification” — indicated to the Court that the search “would be regarded as reasonable and normal in the private-employer context.”
Although this case will be an important precedent for private employers, because the Court declined to set forth broad rules governing the scope of the Fourth Amendment in the digital age, much of this area of law will remained unsettled. Still, there are important hints in the opinion for how private employers can best protect themselves.
The Court’s limited decision may have been influenced by the Electronic Frontier Foundation, who filed an amicus opinion in the case arguing that “[t]his Court accordingly should proceed with caution, and take care to limit its decision here to the specific factual situation before it. The Court’s ruling otherwise could have unjustified and unintended, but extremely significant, implications for the continued protection under the Fourth Amendment of Americans’ most private communications, which increasingly are conducted using these new technologies.” The Court acknowledged in its holding that a broad opinion was not warranted at this time:
[T]he Court would have difficulty predicting how employees’ privacy expectations will be shaped by those changes or the degree to which society will be prepared to recognize those expectations as reasonable. Cell phone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self identification. That might strengthen the case for an expectation of privacy. On the other hand, the ubiquity of those devices has made them generally affordable, so one could counter that employees who need cell phones or similar devices for personal matters can purchase and pay for their own. And employer policies concerning communications will of course shape the reasonable expectations of their employees, especially to the extent that such policies are clearly communicated.
A broad holding concerning employees’ privacy expectations vis-à-vis employer-provided technological equipment might have implications for future cases that cannot be predicted. It is preferable to dispose of this case on narrower grounds.
Thus, while the Quon decision is a narrow one, there is a key lesson for employers here: an employer’s communications policy is of the utmost importance when it comes to determining whether or not an employee possesses a reasonable expectation of privacy. In Quon’s case,
Before acquiring the pagers, the City announced a Computer Usage, Internet and E-Mail Policy” (Computer Policy) that applied to all employees. Among other provisions, it specified that the City “reserves the right to monitor and log all network activity including e-mail and Internet use, with or without notice. Users should have no expectation of privacy or confidentiality when using these resources.” In March 2000, Quon signed a statement acknowledging that he had read and understood the Computer Policy.
Although the Computer Policy did not cover text messages by its explicit terms, the City made clear to employees, including Quon, that the City would treat text messages the same way as it treated e-mails. At an April 18, 2002, staff meeting at which Quon was present, Lieutenant Steven Duke, the OPD officer responsible for the City’s contract with Arch Wireless, told officers that messages sent on the pagers “are considered e-mail messages. This means that [text] messages would fall under the City’s policy as public information and [would be] eligible for auditing.”
The language of the employee communications policy in Quon was robust enough to prevail before the Supreme Court, although the employer’s case could have been even stronger had it taken care to enumerate all the communications methods that the policy covered. In light of Quon, here are the steps private employers should take in order to best protect their right to monitor work-place computer equipment:
(1) Have a robust employee communications policy in place, which disclaims any possible reasonable expectation of privacy in the communications conducted over employer-owned equipment;
(2) Make sure that all relevant communications mechanisms are covered by the policy, and, as communication methods evolve and change, regularly update your employees on how the communications policy applies in light of those changes;
(3) Have employees sign a release that affirmatively acknowledges that they have read and understood the employer’s communications policy; and,
(4) Employers should actually abide by and follow the policy they have in place. If the policy is there for legal reasons, but not actually followed in the course of daily business operations, the protections afforded by the policy will be severely weakened.
Posted by Susan Simpson 
