Friday, June 18, 2010

U.S. Supreme Court Side-Steps Questions of Employee Privacy In Electronic Communications

On June 18, 2010, the U.S. Supreme Court handed down its opinion in the case of City of Ontario v. Quon, a matter that has been closely watched by labor and employment lawyers across the country, who were expecting the first pronouncement or analysis by the High Court into the scope and boundaries of employee expectation of privacy in electronic communications in the workplace. Unfortunately, all those who were anxiously awaiting guidance in this age of rapidly advancing technology or the advent of new legal principles for the techno-age, will be disappointed. In a unanimous decision, the Supreme Court intentionally (and conspicuously) side-stepped all troubling and contentious issues swirling around privacy of electronic communications in the workplace, and instead chose to resolve this case on much narrower grounds, by simply holding that under the Court's existing precedents, the government employer in Quon did not violate the employee's Fourth Amendment rights when it audited his text message transcripts because the search that was conducted was reasonable and well within Constitutional limits.

Briefly, the Quon case involved a civil action filed by Quon, a member of the City of Ontario SWAT team, against the City of Ontario and various government officials, alleging violations of the Fourth Amendment to the U.S. Constitution (right to be free from unreasonable searches and seizures), and other claims based on federal and California law, after the City police department conducted an audit of two-months of Quon's text message transcripts in order to determine whether Quon was sending text messages about non-work related matters during working hours. Specifically, the City had issued text-messaging pagers to all of its SWAT team members in order to enable them to respond more quickly to emergencies. The pagers came with a text-messaging plan that allowed a maximum number of text characters to be sent each month. At the time that the pagers were issued, the City had in place an electronic communications policy, which stated that the City had the right to monitor all network activity, including email and Internet activity without notice, and that the users of the network had no expectation of privacy in any communications sent over the City's network. While the text messages that were sent via the SWAT pagers were transmitted by a third-party wireless carrier rather than over the City's network, the SWAT members were told on at least one occasion that the text messages would be treated by the City the same as emails, and thus, would be subject to the City's electronic communication policy.

A few months after the pagers were issued, Quon was approached by a supervisor, who told Quon that he had exceeded his monthly text message character allotment, and that an overage charge was being charged to the City. Quon's supervisor told Quon that if he simply paid for the overage charge, the supervisor would not conduct an audit of Quon's text messages to see whether the texts were work-related or not. Quon agreed and paid for the overage himself.

After many subsequent months of incurring overage charges, Quon's supervisor decided that he was "tired of being a bill collector," and ordered an assistant to retreive the text messaging transcripts for Quon and some other officers for purposes of auditing the content and usage of the text messages being sent during work hours. Two months of transcripts were received by the City, and it proceeded to redact all text messages sent by Quon outside his scheduled work shifts for those months, and instead, looked only at the content of those messages sent during work hours. The City discovered that during work hours in August of 2002, Quon had sent 456 text messages, only 57 of which were work-related. On an average workday, Quon would send or receive 28 messages, of which only about 3 were related to police business. Many were sexually explicit, as well. Quon was allegedly disciplined for violating internal police rules following this audit.

Quon then filed suit, claiming that the City's search of his text message transcripts constituted a violation of his Constitutional right to be free from unreasonable searches under the Fourth Amendment. Quon maintained that the City's electronic privacy policy had been abrogated by the City when his supervisor began a practice of not auditing Quon's text messaging on a monthly basis, so long as Quon paid for any related overage charges. Quon argued that this practice then created an expectation for him that the content of his text messages were private and protected. The 9th Circuit Court of Appeals, below, had agreed with Quon and held the search unconstitutional.

When the Supreme Court first agreed to hear this case, it was expected that the Court's ultimate decision would involve an analysis of the interplay between electronic communications in today's world, the privacy expectations that employees may have in sending or receiving such electronic communications versus an employer's expectation of an efficient work environment. Yet, the Supreme Court avoided all of these thorny issues, and simply held that, based upon the facts of this case, that the City's search was reasonable under the Fourth Amendment, and therefore permissible. In so doing, the Court explicitly assumed that: (1) Quon had a reasonable expectation of privacy in the text messages sent on the pager provided to him by the City; and (2) the principles applicable to a government employer's search of an employee's physical office apply with the same force to when the employer intrudes on an employee's privacy in the electronic sphere.

Other than these two assumptions (which were accepted by the Court solely for purposes of deciding this case), the Court explained its reasons for side-stepping any questions regarding the nature of electronic communications themselves as follows:

"The Court must proceed with care when considering the whole concept of privacy expectations in communications made on electronic equipment owned by a government employer. The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear. . . Prudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices. . . Rapid changes in the dynamics of communication and information transmission are evident not just in the technology itself but in what society accepts as proper behavior. As one amici brief notes, many employers expect or at least tolerate personal use of such equipment by employees because it often increases worker efficiency. . . Another amicus points out that the law is beginning to respond to these developments, as some States have recently passed statutes requiring employers to notify employees when monitoring their electronic communications. . . At present, it is uncertain how workplace norms, and the law’s treatment of them, will evolve."

The Court continued its dance around these thorny issues by noting that: "the Court would have difficulty predicting how employees’ privacy expectations will be shaped by those changes or the degree to which society will be prepared to recognize those expectations as reasonable . . . Cell phone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self identification. That might strengthen the case for an expectation of privacy. On the other hand, the ubiquity of those devices has made them generally affordable, so one could counter that employees who need cell phones or similar devices for personal matters can purchase and pay for their own. And employer policies concerning communications will of course shape the reasonable expectations of their employees, especially to the extent that such policies are clearly communicated. A broad holding concerning employees’ privacy expectations vis-à-vis employer-provided technological equipment might have implications for future cases that cannot be predicted. It is preferable to dispose of this case on narrower grounds."

Therefore, while many of us in the legal community were anxiously awaiting the Supreme Court's weighing-in on these emerging issues of electronic communications, employee privacy, and employer interests, it seems that we will have to wait a bit longer.

In the meantime, perhaps Congress should give iPhones to all of the Justices and their Clerks.

You can read the full Supreme Court opinion in Quon here: