Employers can search employee communications with reason, court rules

The U.S. Supreme Court today ruled that employers have the right to search through text messages, including personal ones, sent by workers if they have reason to believe that workplace rules are being violated.

The ruling (download PDF) overturns an earlier decision by the Ninth Circuit Court of Appeals in a case involving a California police officer who had claimed his Fourth Amendment rights had been violated when supervisors conducted a search of his text messages.

The Ninth Circuit court had ruled that the city of Ontario, Calif., violated the officer’s constitutional rights when police supervisors read transcripts of personal messages, including several sexually explicit ones, that Sgt. Jeff Quon sent using his city-issued SWAT pager.

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Quon filed a federal lawsuit against the city, its police chief and the police department in October 2004, contending that the search of his pager was unreasonable.

The suit contended that when Quon and other officers were issued the pagers, the city had no policy related to text-messaging. The city did, however, have official policies surrounding general computer, Internet and e-mail usage policy that limited use to official purposes.

Under the city’s contract with Arch Wireless, (since purchased by USA Mobility Wireless Inc.), each pager was allotted 25,000 characters per month.

An informal policy required police officers who exceeded that amount to pay for the overage to avoid auditing, according to papers filed with the court. Quon was one of several officers who frequently exceeded that limit largely on account of his sending numerous private messages, including sexually explicit messages to others, including his wife, the papers said.

The police department discovered the personal use when it was conducting a review of pager use to see whether the 25,000-character limit was adequate for official purposes.

Quon claimed the search was a violation of his constitutional right against unreasonable search. He claimed that he had been led to believe that the personal messages he sent and received using the pager would not be audited if he paid for the personal use.

The city, for its part argued that any expectation of privacy was subjective at best. It argued that Quon knew about the department’s written policies relating to computer use and the fact that text messages sent on the department’s pagers were subject to public disclosure requests under the California Public Records Act.

The police department also argued that the payment for overages that Quon made stemmed from an informal billing practice and not an official department policy.

The city’s arguments however were dismissed first by the Central District Court of California and later by the Ninth Circuit Court of Appeals. Both courts ruled that Quon did indeed have a reasonable expectation of privacy in the personal text messages he sent on his official pager.

In today’s ruling the Supreme Court however held that the search was justified because the police department had a “legitimate work-related rationale” in conducting it.

“The City and OPD had a legitimate interest in ensuring that employees were not being forced to pay out of their own pockets for work-related expenses, or on the other hand that the City was not paying for extensive personal communications,” the court ruled.

“That the search did reveal intimate details of Quon’s life does not make it unreasonable, for under the circumstances a reasonable employer would not expect that such a review would intrude on such matters,” the court said.

At the same time, the Supreme Court court said it was hesitant to use the facts from this one case to establish “far-reaching premises” involving employee privacy expectations when using employer-provided communication devices.

“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 decision said. “The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear.”

Jim Dempsey, vice president for public policy at the Centre for Democracy and Technology said the key to the Supreme Court’s opinion is what is missing from the ruling.Rather than curtailing workplace privacy, the ruling makes it clear that employers have the right to search employee communications but only if they have a good reason for doing so, Dempsey said in an e-mail statement.

“Unless a ‘no privacy’ policy is clear and consistently applied, an employer should assume that employees have a reasonable expectation of privacy and should proceed carefully, with a good reason and a narrow search, before examining employee emails, texts or Internet usage,” Dempsey said.

Jaikumar Vijayan covers data security and privacy issues, financial services security and e-voting for Computerworld. Follow Jaikumar on Twitter at @jaivijayan, or subscribe to Jaikumar’s RSS feed . His e-mail address is [email protected]


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