Scott E. Blissman also contributed to this post.

The U.S. Supreme Court held that a public employer’s review of transcripts of an employee’s text messages on an employer-issued pager constituted a reasonable search under the Fourth Amendment of the United States Constitution. City of Ontario, Calif. v. Quon, No. 08-1332 (June 17, 2010). Although the case involved a public employer, it has some important lessons for private sector employers as well.

Factual Background

Quon worked for the City of Ontario, California, as a police sergeant and as a member of its SWAT team. In 2001, the police department issued pagers to its SWAT team members to help them mobilize and respond to emergency situations. The City’s contract with its wireless service provider had a monthly character limit for each pager, and the City required officers to reimburse it for the additional fees incurred for monthly usage over that limit. When the reimbursement process became burdensome, the City reviewed the communications to determine if the existing character limit was too low for work-related purposes or if the overages were for personal messages.

An initial review showed that several officers had used their pagers for extensive personal text messaging. For instance, many messages sent and received on Quon’s pager were personal in nature, and several were sexually explicit. This prompted the Police Department’s Internal Affairs Division to investigate whether Quon had violated department rules by pursuing personal matters while on duty. The investigation concluded that he had done so, noting for instance that of the 28 messages Quon averaged per shift, only three were work-related.

The City had a “Computer Usage, Internet and E-mail Policy” that permitted incidental, personal use of City-owned computers and equipment. The policy warned employees that personal communications could be monitored, and that employees had no expectation of privacy in such communications. Although the policy did not mention text messages, the City made clear to employees that such messages would be treated like e-mails. The police lieutenant responsible for the City’s wireless contract, however, told Quon that “it was not his intent to audit [an] employee’s text messages to see if the overage [was] due to work related transmissions.” Quon interpreted that comment to mean that the City would not examine the content of his text messages.

Lower Court Proceedings

Quon and others sued the City for violating their rights under the Fourth Amendment to the U.S. Constitution. The District Court ruled that the employees had a reasonable expectation of privacy in their text messages and held a trial to determine whether the search had been reasonable. Finding that the search was reasonable, the court ruled in favor of the City.

On appeal, the United States Court of Appeals for the Ninth Circuit reversed in part. The court agreed that the employees had a reasonable expectation of privacy in their text messages, but found that the City’s search had been unreasonable. The court concluded that although the search was “for a legitimate work-related rationale,” it could have been conducted in a less intrusive manner, such as by asking the officers to redact the content of their personal messages. The court thus held that the City had violated the officers’ Fourth Amendment rights.

Supreme Court Decision

The Supreme Court unanimously reversed the Ninth Circuit’s decision, holding that the City’s review of the text-message transcripts was a reasonable search under the Fourth Amendment.

Specifically, the Court concluded that under the Fourth Amendment, a public employer may properly conduct a workplace search without a warrant where it is both “justified at its inception” (i.e., conducted for a “noninvestigatory, work-related purpose” or for the “investigation of work-related misconduct”), and reasonable in scope (i.e., the method of the search is reasonably related to its objectives and not excessively intrusive). Applying these standards, the Court held that the City’s search was for a legitimate business purpose and narrowly tailored to achieve that purpose.

The Court rejected the Ninth Circuit’s “least intrusive” approach to evaluating the reasonableness of a search, finding that “judges engaged in post hoc evaluations of government conduct can almost always imagine some alternative means by which the objectives of the government might have been accomplished.” That alone, the Court held, does not mean that a search was necessarily unreasonable.

The Court did not address the larger issue of whether employees have an expectation of privacy in employer-provided electronic devices, readily admitting that it sidestepped that issue because it “might have implications for future cases that cannot be predicted.”

Practical Effects for Employers

The Court’s decision not to address the expectation of privacy issue makes it even more essential that public and private employers adopt and consistently administer clear and strongly worded computer and electronic device policies. Such policies must specifically describe the scope of an employee’s permissible use of employer-provided equipment, and clearly and conspicuously warn employees that they have no expectation of privacy in their use of such equipment. To avoid “stray comments” like those of the police lieutenant in Quon, the policy should state that no one has authority to alter the policy unless the exception is in writing and signed by a high-ranking official of the employer. Management should also thoroughly review existing policies to make sure they apply to all employer-provided equipment.

To further protect their right to monitor messages and avoid legal pitfalls, employers should also consider taking the following steps:

• Obtain signed or implied consent to search and monitor.
• Conduct searches only for justifiable, reasonable work-related reasons.
• Seek only work-related information to protect the business, customers, and employees.
• Take reasonable precautions to avoid obtaining information beyond the justifiable scope of the search.
• Even though the Supreme Court’s rejected requiring employers to use the “least intrusive” method of searching, monitor in the least intrusive way to obtain the information needed, because juries are more understanding and “forgiving” of less intrusive searches.
• Remain sensitive to and compliant with federal, state, and local laws that apply to electronic monitoring and searching.