Supreme Court: All Of Your Text Belongs To Us

Yesterday, the Supreme Court unanimously rejected the theory that employees have a broad right of privacy for communications made at work in City of Ontario, et al., v. Quon, et al.   But the ruling itself is fairly narrow, and hints that the justices may be open to some limited privacy rights for private employee communications in the future.

This case addressed an interesting fact pattern: a police officer was issued a pager, and told he could also use it for limited personal texting.  Later, after becoming concerned that most of the texting may have been of a personal nature, the police chief reviewed the texts of the plainitff (including personal, sexually explicit texts) and the  offended officer sued.  Because this was a government agency doing the search, the issue  at hand involved the question of whether the police chief violated the employee’s Fourth Amendment rights against unreasonable searches and seizures.

The Supreme Court said no: “Because the search was motivated by a legitimate work-related purpose and because it was not excessive in scope, the search was reasonable,” said Justice  Kennedy.  At most, said the Court, public employees have only a limited expectation of privacy, and this was a legitimate, work-related inquiry.  In the words of SCOTUSBlog:

The Court’s Quon decision permits government supervisors to examine the private texting of their employees but only if the following conditions have been met:  the cell phone must be provided by the agency itself, the worker must have been told in advance that any messages they send on that equipment would be subject to auditing by management, the examination of the transcripts must be for a work-related purposes — such as determining whether the device was being used wrongly — and not to gather evidence of criminal wrongdoing, the review of the transcripts must be based on some grounds to suggest misuse, and management would be wise before looking at transcripts to delete messages sent when the worker was off duty.  In checking up on workers’ use, the Court added, management need not use the “least intrusive” method of review.

It is critical, however, to note that this case dealt solely with the issue of public employees, and did not address the situation of private employers where the Fourth Amendment issues do not apply.  The Court did engage in some random thoughts on the ubiquity of cell phones, pagers and other personal communication devices, and implied that their universality may create additional expectations of privacy.  However, the Court declined to decide the case on anything but the narrowest grounds, leaving employers and employees to guess at how the law will develop in this area. 

But regardless, there are things that you should do, either as an employee or an employer, even in the absence of Supreme Court precedent: namely, you should clarify your  position so that there is no confusion later on.   If there is no expectation of privacy in your workplace and on communication devices you use in the workplace, you need to know that as an employee.  Conversely, if you are the employer, you will want to make sure that everyone knows the rules up front.  While we await further developments in this area of the law, we should all ask for less uncertainty in our own jobs — whatever the answer might be.