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Search Publications

June 2010

The Supreme Court Sends an Important Reminder Regarding Electronic Communications Policies

Quon v. Arch Wireless

Quon v. Arch Wireless addresses the application of the Fourth Amendment protection against unreasonable searches and seizures arising out of a police officer's personal use of his department-issued pager. Although the officer was a public employee, the case contains important lessons for both public and private employers when it comes to electronic communications policies.

Plaintiff Quon, a police officer, was fired after the department obtained copies of his text messages, which included sexually graphic material. The officer undertaking the review did so to learn whether the existing character limit was too low in light of the repeating overage fees by officers, including Plaintiff. The department justified its review of the text messages under its general "Computer Usage, Internet and E-mail Policy." While the computer use policy included provisions that individuals should have no expectation of privacy, there was no mention of text messaging in the policy. The department did hold a meeting in which they notified those present that pages/text messages were considered e-mail messages for purposes of the city's policies. However, departmental review of the messages was inconsistent with the actual practice and one senior officer's representations. In addition, the individual in charge of auditing and overseeing the pagers specifically told Plaintiff that Plaintiff's messages would not be viewed if Plaintiff simply paid the overage fee.

Overturning the Ninth Circuit, the United States Supreme Court found that even assuming the officer had a legitimate expectation of privacy, the search was reasonable under the standards set forth in O'Connor v. Ortega. Because the officer reviewing the e-mails was doing so for a legitimate business reason—determining if the plan limits need to be increased—and kept the scope narrow, the search was reasonable.

For public and private employers alike, what is most significant about this opinion is the Court's dicta related to emerging technologies and employment policies. The Court expressly sought to avoid "far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices." The Court opined,

[E]mployer policies concerning communications will of course shape the reasonable expectations of their employees, especially to the extent that such policies are clearly communicated.

Employers must recognize that the courts will continue to look at an employer's review of technology on a case-by-case basis. As the Court reaffirms, the most important thing employers can do to protect themselves is to maintain an up-to-date electronic communications policy that fully encompasses all forms of electronic communications, allows for employer review and clearly spells out that there should be no expectation of privacy in any corporate/governmental communications.

Employment Law

Employment Law