CalChamber-Court Sides with Employers on Search of Text Messages

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Although the text messages were sent from employer-provided devices, the transcripts were stored on a third party’s server – that of the wireless company.

Legitimate Work Purpose

The U.S. Supreme Court concluded that the employer’s inspection of text messages sent to one of its employees was reasonable because "the search was motivated by a legitimate work-related purpose, and because it was not excessive in scope. . . ."

Although the case before the court involved a public sector employer, the court reasoned that such a search also would be viewed as "reasonable and normal in the private-employer context."

Based on the foregoing, the court concluded that the City of Ontario did not violate the Fourth Amendment right against unreasonable searches when it inspected text messages sent to its employee, city police officer Jeffery Quon.

Background

Quon, a sergeant and member of the City of Ontario Police Department (OPD) SWAT team, had a department pager.

The city maintained a computer use policy that limited use of computers and related equipment to city business only and informed employees that it could monitor and view employee use of employer-provided devices. The policy did not expressly mention pagers or text messages.

The city contracted with Arch Wireless for the pagers. The contract included a monthly character limit. Quon exceeded the character limit a number of times, each time reimbursing the city.

At a staff meeting, an OPD officer told officers that messages sent on pagers were considered e-mail and could be audited. The officer said he did not intend to audit an employee’s text messages to see if the overage was due to work-related transmissions, and suggested employees who incurred overage fees could reimburse the city rather than having the messages audited.

After a while, however, the supervising lieutenant got tired of being what he called "a bill collector," and the police chief decided the department should review the messages of the highest users. The department asked Arch Wireless to provide transcripts of the text messages.

A major account specialist with Arch Wireless printed out the transcripts associated with OPD pager numbers, put the transcripts in a manila envelope and brought them to OPD. The major account specialist did not read the messages, but after reviewing about four lines of one of the transcripts, she realized the messages were sexually explicit.

Internal Affairs audited the records to determine if Quon was violating department rules by dealing with personal matters while on duty. The audit of messages Quon sent during work hours found that on an average workday, Quon sent or received 28 messages, of which only three were related to police business.

Quon sued the OPD for violating his Fourth Amendment protection against unlawful searches, and Arch Wireless for violating his privacy by releasing the transcripts to OPD. A jury concluded that the police chief’s intent was a legitimate one of auditing the messages to determine the efficacy of the character limits to ensure the officers were not paying hidden work-related costs.

The 9th U.S. Circuit Court of Appeals, however, concluded the search was not reasonable, saying there were approaches less intrusive than an audit that the police chief could have used. The circuit court also said Arch Wireless had violated Quon’s privacy.

The U.S. Supreme Court rejected the circuit court ruling on the reasonableness of the search, but said it was not necessary to resolve the privacy question.