U.S. Supreme Court Addresses Text Messaging on Employer-Provided Systems

Last week, in City of Ontario, California v. Quon, 560 U.S. ____ (2010), the United States Supreme Court looked at the issue of the privacy of workplace text messages. Quon involved the question of whether a police officer had the reasonable expectation of privacy in text messages that were sent using a pager issued by the Ontario Police Department. The opinion of the Court, issued by Justice Kennedy, held that government employers have the right to read transcripts of employees’ e-mails or instant messages if needed for a legitimate work-related purpose.

The Court assumed a reasonable expectation of privacy existed in text messages but found that Quon’s Fourth Amendment rights were not violated. The Court concluded that the search was reasonable "because it was motivated by a legitimate work-related purpose, and because it was not excessive in scope... Although Quon had exceeded his monthly allotment a number of times, [Ontario Police Department] requested transcripts for only August and September 2002 in order to obtain a large enough sample to decide the character limits’ efficaciousness, and all the messages that Quon sent while off duty were redacted. And from OPD’s perspective, the fact that Quon likely had only a limited privacy expectation lessened the risk that the review would intrude on highly private details of Quon’s life."

However, the Court cautioned that this decision is narrow and declined to address the broader issues of privacy regarding such devices because, "At present, it is uncertain how workplace norms, and the law’s treatment of them, will evolve." Consequently, employers still have limited guidance about privacy issues related to workplace technology.

This article was authored by Erin R. Stankewicz, Jackson Kelly PLLC.