On June 17, 2010, the United States Supreme Court issued its much-anticipated decision in City of Ontario v. Quon, holding that a police department did not violate the Fourth Amendment when it searched an employee's text messages for a legitimate work-related purpose. The Court decided the case on narrow grounds, refusing to reach the issue of whether the employee had a reasonable expectation of privacy in electronic communications sent on an employer-owned device. Nonetheless, even though this decision does not apply directly to private-sector employers, important lessons emerge from the case that should prove useful.

The case concerned claims by police sergeant Jeff Quon regarding Quon's use of a wireless pager issued by his employer. When Quon exceeded the monthly character limit for messages, the department audited transcripts of the messages, many of which were found to be personal and some of a sexually explicit nature. When Quon was disciplined, he challenged the audit of the text messages in federal court as an unlawful search under the Fourth Amendment to the U.S. Constitution.

The Supreme Court's Ruling

In a unanimous ruling by Justice Kennedy, the Court held that the department's review of the text messages was reasonable. In doing so, the Court sidestepped an issue many employers had hoped the Court would address, namely whether employees have a reasonable expectation of privacy in electronic communications sent on employer-owned devices. Commenting that "[p]rudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations," the Court assumed, without deciding, that Quon had a reasonable expectation of privacy in his text messages. (In a concurring opinion, Justice Scalia chided the majority for avoiding the issue, commenting that "[t]he times-they-are-a-changin' is a feeble excuse for disregard of duty.") Applying prior precedent relating to searches of physical premises occupied by government employees, the Court concluded that the same principles that apply to searches of physical offices apply in the "electronic sphere." Ultimately, the department's review of Quon's text messages was upheld because the search was conducted for a legitimate non-investigatory, work-related purpose?to determine whether the monthly character limit was appropriate?and because it was not excessively intrusive under the circumstances.

Guidance for Private Sector Employers

As noted, Quon is limited in its reach to governmental employers and explicitly avoided defining the contours of employees' privacy rights in electronic communications. Nevertheless, the Court's decision touches on several key issues that suggest the following useful guidance in this evolving field:

Establish comprehensive policies regarding employees' use of employer-issued electronic devices. As Justice Kennedy stated in the Court's opinion, "employer policies concerning communications will of course shape the reasonable expectations of their employees." Accordingly, policies should make clear that the employee has no right of privacy in communications received or sent on employer-provided devices?whether the communication is work-related or personal?and the employer has the right to audit the devices' content at any time.

  • Communicate the company's policy clearly and in writing, consider having employees acknowledge their receipt and understanding of the policy, and update the policy as appropriate to reflect changing technology.
  • Ensure that company policies are not undermined by ad hoc cothat the policies cannot be modified, except in a written statement issued by a designated management representative.
  • Be prepared to articulate a legitimate, work-related reason for any searches of equipment in which an employee may claim an expectation of privacy. In addition, while the Supreme Court rejected the Ninth Circuit's "least intrusive means" test, consider carefully the scope of any search and then tailor appropriately. mments by supervisors. Having assumed that Quon had a reasonable expectation of privacy, the Court did not address whether Quon's lieutenant's comment that he did not intend to audit Quon's text messaging constituted a modification of the department's written policy. To reduce the exposure to claims of detrimental reliance on supervisory statements, we suggest that electronic communications policies contain a statement

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