Supreme Court Rules On Text Messaging Case

On June 17, 2010, the U.S. Supreme Court unanimously issued a decision in a much anticipated case, City of Ontario v. Quon, No. 08-1332, 560 U.S. (2010), holding that the employer’s review of an employee's text messages on an employer-issued pager was a reasonable search pursuant to the Fourth Amendment. Justice Kennedy authored the opinion. In dicta, the Court emphasized the importance of employer policies on this issue, stating that "employer policies concerning communications will of course shape the reasonable expectations of their employees, especially to the extent that such policies are clearly communicated" (Quon, No. 08-1332, slip op. 11). In light of the Court's reasoning on this important issue, employers should implement written workplace policies that specifically refer to all forms of employer issued electronic devices (i.e. computers, cell phones, pagers, etc.), and that clearly and unequivocally advise employees that they should have no expectation of privacy in these devices.

However, two aspects of the decision may limit broader application of the case. One, the case involved a government entity, and two, the Court narrowed its decision by specifically limiting it to the facts of this particular case. On this point, the Court noted 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 enjoyed by employees when using employer-provided communication devices. . . [a] broad holding concerning employees' privacy expectations vis-à-vis employer-provided technological equipment might have implications for future cases that cannot be predicted" (Quon, No. 08-1332, slip op. 10). The Court thus took a narrow approach to its decision by assuming that Quon had a reasonable expectation of privacy in his text messages, and then finding that the city's search was reasonable under the circumstances. The Court emphasized that it "must proceed with care when considering the whole concept of privacy expectations in communications made on electronic equipment owned by a government employer. The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear" (Id. at 10).

Therefore, the question is what guidance, if any, does this case provide for employers when implementing workplace policies regarding employer issued communications devices? Certainly the case emphasizes the importance of clearly written workplace policies that address privacy expectations in employer issued electronic devices. I was particularly intrigued by the Court’s comment that "[c]ell 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." However, alternatively, the Court noted that, "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."

Justice Scalia, in his concurring opinion, observed that, “Applying the Fourth Amendment to new technologies may sometimes be difficult, but when it is necessary to decide a case we have no choice. The Court's implication . . . that where electronic privacy is concerned we should decide less than we otherwise would (that is, less than the principle of law necessary to resolve the case and guide private action)--or that we should hedge our bets by concocting case-specific standards or issuing opaque opinions--is in my view indefensible. The-times-they-are-a-changin' is a feeble excuse for disregard of duty" (Id. at 2) (Scalia, J. concurring). So, where does this leave employers?

BOBrien