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Alert: Supervisor Assurance Trumps Employer Policy - Creates Privacy Expectation In Electronic Communications

6/23/2008 Articles

Last week, the U.S. Ninth Circuit Court of Appeals held that employees may have a reasonable expectation of privacy in their text messages transmitted on pagers provided by their employer, despite policy warnings that such messages were subject to inspection.  In Quon v. Arch Wireless Operating Company, 08 CDOS 7472 (9th Cir. June 18, 2008), the Circuit directed that the district court grant summary judgment against the City of Ontario on the grounds that its search of police officer text message content violated their privacy rights under both the U.S. and California Constitutions.  The decision affects private employers because the California Constitution's right to privacy limits private employer's actions similarly to public employers.

In Quon, the City had provided its police officers with pagers capable of generating and receiving text messages.  The City had published a policy warning officers that their electronic communications equipment was only to be used for official business and that the contents were subject to examination by the City at any time without notice.  The Department's Administration Bureau had also informed Quon and other users that pager messages were considered emails and were subject to the Department's general examination policy.  On the other hand, the Lieutenant in charge of the pager system advised officers that, as long as they paid the charges for any usage beyond the monthly allotment, he would not "audit" their pagers.  Eventually, though officers paid the overuse charges, the City did obtain message content from the pager vendor and examined that content to determine the reason that officers were exceeding their monthly allotment.  The officers sued the City for constitutional privacy violations. 

Both the district court and the Circuit held that the officers had a reasonable expectation of privacy to their text messages, notwithstanding the policy warnings regarding limited use and employer inspection of electronic communications.  The courts held that the Lieutenant's reassurance trumped those policy warnings given that he was in charge of administrating the pagers and had previously honored the assurance as long as officers had paid their overage fees.  The Circuit held that the search of text messages to determine the reason for excess usage was unreasonable because the City could have accomplished this goal through less intrusive means, such as prospectively asking police officers to avoid personal use for a month and advising them that their text message content would be examined in that month.  Given the expectation of privacy and unreasonableness of the search, the Circuit found that it violated the U.S. and California Constitutions as a matter of law.

This decision carries implications beyond the public employment sector and beyond text messaging.  The California Constitutional privacy right limits actions of private employers.  The Circuit expressly acknowledged that its analysis in this case would apply equally to other electronic communications such as email.  Thus, under this decision, supervisor comments may be deemed to create privacy expectations in employee email, computers or other electronic communication equipment notwithstanding an explicit, well-published policy advising employees that the equipment is to be used only for work or is subject to inspection.  Employers should revise such policies to clarify that no supervisor is authorized to revise the policy, and supervisors should be trained to avoid inadvertently providing such reassurance.

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