SEARCH OF EMPLOYEE TEXT MESSAGES NOT ILLEGAL

Is it a Fourth Amendment violation for a public employer to review text messages sent by an employee on an employer-provided communication device? In a decision rendered on June 17, 2010, the U.S. Supreme Court found that, under the facts presented, it is not a violation of the employee’s rights.  This case may significantly impact the relationship between public entities and their employees.

In City of Ontario, California v. Quon, the Court reviewed a lawsuit brought by a police officer against the city for whom he worked.  The police department of Ontario, California issued alphanumeric pagers to its SWAT team so they could coordinate their efforts through text messages.  The police department had a network/internet policy which stated that employees had no expectation of privacy in e-mail and computer use.  Through subsequent directives, the department clarified that the policy applied to text messages sent through the pagers.  The department’s contract with the pager service provider imposed a number of characters which could be sent or received by a pager over a monthly period and imposed a fee for overages.  For a period of time, the department permitted officers to pay for the overage charges out of their own pocket, but after several months of collecting reimbursement, the department’s chief decided to determine whether the overages were being caused by a too-low limit on text message characters or whether officers were using the pagers to send non-work-related messages.  Transcripts were ordered of the messages sent by one officer who went over the limit, Jeff Quon, and after it was determined the vast majority of messages Quon sent and received were unrelated to work, he was subjected to discipline.

In response, Quon filed a lawsuit alleging that the department had infringed his Fourth Amendment right to be free from unreasonable search and seizure, and that the provisions of the Stored Communications Act (SCA) had been violated.  After holding a jury trial, the District Court determined that the department’s purpose for auditing Quon’s records was to see whether the character limit maximums were too low to meet the department’s needs, and not to infringe on Quon’s privacy, and the court rejected his Fourth Amendment claim.  On appeal, the Ninth Circuit Court of Appeals reversed in part and held that the department should have employed less intrusive means for carrying out the purpose of its audit of the text messages.  As a result, the Court of Appeals found in favor of Quon.

The U.S. Supreme Court reversed and held that the Fourth Amendment was not violated by the chief’s review of Quon’s text messages.  While the review constituted a “search” under the Fourth Amendment, it was justified to investigate the overage charges.  Further, the Court found the search was reasonable and not overly intrusive because reviewing the content of the messages was the most efficient way to determine if the overages were caused by work-related use, and the department audited only two months’ worth of Quon’s messages and redacted any he sent while off-duty.  Finally, the Court determined it was not reasonable for Quon to believe he had complete expectation of privacy as the department informed its officers that messages could be audited and a reasonable person would assume that messages might be audited to see whether the pager was being appropriately used.  On these facts, the Supreme Court found the search of Quon’s text messages was not illegal.

The Court’s holding in Ontario v. Quon impacts the rights of public employers in conducting workplace investigations.  The Court made clear that if the search is for a justified purpose to advance the employer’s interest and is conducted in reasonable fashion which minimizes intrusion, electronic communications of employees can be searched without violating the Fourth Amendment.  However, districts should first seek legal counsel before undertaking searches of employee communications.  Districts should ensure that existing network/acceptable use policies encompass all district-issued communication devices, and should regularly train their employees concerning the provisions of that policy.  Also, Districts must determine a proper justification for a search and must not conduct a search that is more intrusive than necessary or which violates a reasonable expectation of privacy.  While the Supreme Court has opened a door for public entities, it is still incumbent on public employers to use that power appropriately.