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Supreme Court Avoids Tough Privacy Issue

On June 17, 2010, the U.S. Supreme Court decided a highly anticipated workplace privacy case, Ontario v. Quon.  However, the outcome was anticlimactic as the Court found a narrow basis for deciding the case and did not touch the privacy issue, leaving it for another case and another day.

In this case, the Ontario, California police department gave officers on the SWAT Team pagers capable of text messaging.  After a few months where Officer Quon exceeded the monthly allowance for text messages sent, the Department conducted an audit to see whether the overage was due to personal or business use.  In the course of the audit, the Department discovered sexually explicit messages sent while Quon was on-duty.  As a result, Quon was discharged, and he sued claiming the audit violated his privacy rights.

Since the Department is a public employer, and thus, an extension of the government, the Court’s analysis was based on the Fourth Amendment, which protects against unreasonable searches and seizures by the government.  The Court concluded that since the Department’s search was reasonable, Quon’s Fourth Amendment rights were not violated, even if he did have a right to privacy in the on-duty text messages.  Needless to say, there is no practical application for the private sector. 

One lesson private employers can learn is this whole issue could have been avoided if the Department had a proper policy covering text messages.  The Department’s policy only covered “all network activity including e-mail and Internet use” and stated that users “should have no expectation of privacy or confidentiality when using these resources.”  As a result, Quon was able to argue that “text messages” were not covered and should be deemed private.  It is therefore crucial to publish a clear policy that covers all company-issued communications equipment.

Brody and Associates regularly advises management on complying with state and federal employment laws including privacy laws.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.