A company can be liable for violating its employees’ privacy rights when it looks at the content of their text messages, even when the text-messaging devices were provided by the company, held the Ninth Circuit Court of Appeals.  Employers thus cannot be complacent about privacy rights just because they own the means by which their employees communicate.  Employers can, however, still access their employee’s electronic communications if they take appropriate and consistent measures to alert employees of the employer’s rights to these communications.

In Quon v. Arch Wireless Operating Company, the Ninth Circuit examined whether the City of Ontario and its Police Department violated Sergeant Jeff Quon’s constitutional right to privacy. Prior to the lawsuit, the City had distributed pagers to some of its employees. Sergeant Quon was among those employees who received such a pager. The City did not have an official policy concerning text-messaging with its pagers, but it did have a general "Computer Usage, Internet and E-mail Policy" that limited the use of City-owned computers and associated equipment to business related with the City, prohibited the use of these tools for personal benefit, and reserved the City’s right to monitor all network activity. Sergeant Quon signed an "Employee Acknowledgment" indicating that he understood the policy. Two years later, the Sergeant attended a meeting where a Commander in the Police Department informed the employees that text messages in pagers are considered email and, as such, employees could have no expectation of privacy in this messages.

Nevertheless, the City had an unofficial policy concerning pagers: When an employee exceeded the number of characters allotted to him or her by the contract with the service provider, the employee would simply pay the City for the overage. Sergeant Quon was aware of this policy and in fact had paid such charges several times. Tired of acting as a "bill collector," the officer in charge of this procedure conducted an audit that revealed Sergeant Quon’s personal use of the texting feature and his often sexually explicit language when using that feature.

Sergeant Quon and others with whom he had texted sued the service provider, the City, the Police Department, and the Police Chief for invasion of constitutional privacy and related claims. The Ninth Circuit held that users of text messaging generally did not have a reasonable expectation of privacy to the phone numbers used to send the messages. These numbers were analogous to an address on the outside of an envelope, which is not protected by privacy. Users also do not have a reasonable expectation that the intended recipient of those messages will keep the content of the messages private. But there generally is a reasonable expectation of privacy in the content of the text messages against secret searches from the employer.

The court nevertheless left a large window open whereby this expectation of privacy may be diminished and employers may continue to monitor their employees’ electronic communications. A principle predating this decision holds that so long as employees are put on notice that they are subject to searches of electronic communications conducted on company equipment, employers may conduct such searches. The court in Quon v. Arch Wireless Operating Company did not change that principle. It noted that had the City not exercised the unofficial policy of accepting payments for overage, its actions would not have constituted an invasion of privacy. Notably, its "Computer Usage, Internet and E-mail Policy" and staff meeting would have been sufficient for putting Sergeant Quon on notice that he could not expect his communications to be confidential. The unofficial policy, however, belied the official policy and obstructed whatever notice Sergeant Quon may have had of the possibility of the search.

Employers should articulate official policies that alert their employees about the proper usage of computers and associated equipment and the employer’s right to monitor all usage. But Quon v. Arch Wireless Operating Company shows that diligence cannot stop there. Employers must effectively communicate these policies to their employees and not undermine them by the reality of their practices. Mere technicalities—such as whether this reality is driven by an official or final policymaker—will not save employers from liability because courts will examine the "operational reality" of the workplace to make their determinations.

For further information, please contact Kelly L. Hensley at (213) 617-5441).