Right to privacy? Not really

published in Oklahoma Employment Law Letter | November 1, 2010

In April, we told you about a case involving a government employer’s search of an employee’s text messages made on an employer-provided pager. The U.S. Supreme Court hear oral arguments on the case in June but sterred clear of deciding whether an employee has a reasonable expectation of privacy when using employer-provided technology. Instead, the Court skipped to the question of whetherthe sear itself (i.e., the review of the text messages) was reasonable – according to the Court, it was. Nevertheless, the decision is a reminder of the steps you can take to preserve your ability to reasonably monitor employees’ electronic communications.

Supreme Court’s decision

On June 17th, the U.S. Supreme Court decided Ontario v. Quon. The case made its way to the Court after the Ninth U.S. Circuit Court of Appeals overturned a district court decision that the employer had the right to look at the content of text messages sent by an officer on employer-provided pagers. The Ontario (California) Police Department had supplied its SWAT team with pagers in hopes of enhancing communication and performance. The department maintained a policy stating that e-mails and computer usage were subject to review, and it had extended the policy (at least orally) to the pagers.

Sergeant Jeffry Quon and other officers regularly exceeded their allotted text messages, which prompted the city to determine whether it needed to upgrade its text messaging capacity. The city asked the service provider for the records and, in the process, discovered Quon was using his pager to send a large number of nonwork-related text messages, including sexually explicit correspondence. Quon sued the city for violating his right under the Fourth Amendment to the U.S. Constitution to be free from unreasonable search and seizure.

The Fourth Amendment protects the “rights of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizure.” Like other consititutional protections, it applies only to searches and seizures by governmental and public entities. However, given emerging technology and its uses, the Court’s interpretation of the amendment provides much-needed guidance to private employers.

Interestingly, the Court refused to explain whether an employee has a right to privacy when communicating on electronic employer-provided technology – e.g., pagers, cell phones, and computers. Instead, the Court simply assumed a right to privacy and looked at whether the search was reasonable. According to the court, the department’s review of the text messages was “reasonable” in that it had a legitimate reason for doing so, and the search itself wasn’t overly intrusive. The court went so far as to state that “the search would be ‘regarded as reasonable and normal in the private-employer context.” Ontario v. Quon, __U.S.__, 130 S. Ct. 2619 (2010).

Guidance for employers

At the end of the day, this case provides guidance to all employers – public and private. First, as an employer, you need to create, maintain, and distribute a technology policy. Your policy should clearly state that all employer-issued technolog – e.g., computers, cell phones, pagers, and cameras – is company property and shouldn’t be used for nonbusiness purposes. Further, it should be advise employees that they have no expectation of privacy in any communications made or work conducted with the technology and that the company reserves the right to review, inspect, and monitor any and all use. I recommend that the “no rights to privacy” language be in bold type so that there’s no confusion. Additionally, if you add new technology, don’t forget to amend your policy. At the very least, create and distribute a written addendum.

The next step is a little trickier. When do you review or monitor the technology, and how should you do it? As a private employer, you may have a right to monitor or inspect technology whenever and in whatever manner you wish. However, the Supreme Court’s decision provides guidance on what courts might find reasonable. You should have a legitimate business-related purpose for the investigation or review. It can be as simple as rising costs or a sluggish network. Whatever the reason, you should be able to articulate why your search of employees’ communications relates to the business needs of the company.

Conduct inspections in a responsible and unobtrusive way. In other words, be respectful of your employees to the extent possible. For instance, if you are monitoring overuse of the Internet, do you really need to read correspondence sent via an employee’s e-mail account, or is it sufficient to know that she is using the Internet for personal use? The bottom line is, you must have a legitimate business reason for the investigation, which should be conducted in a businesslike manner.

Technology plays a huge part in most businesses these days. Whether an employee has a reasonable expectation of privacy in communications made on employer-provided technology remains an unanswered question. However, as an employer, you have a right to conduct reasonable searches and reviews of company-provided technology. The key is to let employees know that you may, at any time, monitor or review their technology. When you do, conduct the investigation in a reasonable manner, and make sure you have a legitimate business reason for your actions.