By Shamla Naidoo
The evolution of communications technology is blurring the line between work and personal lives. The recent Supreme Court decision in
City of Ontario v. Quon, No. 08-1332 (U.S. Jun. 17, 2010) is more relevant than ever, especially for employers. In Quon, the employee contends that his 4
th amendment protections were violated when his employer, the Ontario Police Department, reviewed his text messages in an unreasonable search and seizure.
In fact the employer reviewed his text messages as part of an audit of usage to determine whether or not the company’s wireless plan was adequate. The court accepted the premise that Quon had a reasonable expectation of privacy; even so, they found that the search was reasonable because:
- It was motivated by a legitimate work-related purpose; and
- It was not excessive in scope.
In this case the audit was based on overuse of text messaging unrelated to police business. The court determined the audit was conducted for a legitimate work-related purpose, to determine if actual business usage exceeded the purchased plan. The employer communicated the policy and limited the scope of the search by redacting all messages that fell outside of Quon’s normal work hours. The court determined the search was not excessive. The court agreed with the employer that this was not an unreasonable search and that Quon’s 4
th amendment rights were not violated by this search. This opinion applied narrowly to the government as an employer and to an employer issued device. This court did not go so far as to say that a government employee had no right to expect privacy in text messages.
For those of us in private businesses, it is prudent to understand the court’s position. Cases like this one are helpful when determining our monitoring strategy especially since there is no comprehensive body of law that guides the expectation of privacy topic. The broad adoption of employer-issued personal communication devices will likely lead to more litigation and additional narrow opinions granted on a case-by-case basis until the matter of privacy in the workplace is settled.
I encourage those of you who issue these devices to employees or those who monitor employee activity to read this unanimous opinion. The legal issue of privacy in the workplace is neither a simple nor a settled matter.
