How Private is Your Employee’s “Sexting?”: The Supreme Court Weighs In

Employment Law  

July 2010

The U.S. Supreme Court recently issued a key decision in City of Ontario v. Quon regarding the privacy of employee text messages. Although the ruling does not directly affect private employers, the Court’s discussion of workplace privacy offers some much-needed insight into this imprecise area of law and will likely form the foundation for later cases reaching the private sector. Quon indicates that private employers should carefully consider the purpose and scope of any investigations that may impact employee privacy and carefully craft existing policies to notify employees in broad terms of the potential for investigations.

The Facts. Ontario police officers were issued pagers by the City and were allotted 25,000 characters per month. If an officer exceeded his or her allotted characters, the City billed the officer for the overage. The officers were told that the contents of their text messages would only be examined if they contested their overage fees. Shortly after the pagers were disseminated, the issuing police officers conducted an audit – without warning – to ascertain whether the character allotments should be increased. The audit revealed that some officers were sending personal text messages with sexual content. The officers filed suit for an invasion of their right to privacy.

The Analysis. The Supreme Court declined to rule on whether the officers had a reasonable expectation of privacy in their text messages. In particular, the Court noted that the rapid rate of change in technology is accompanied by rapidly evolving social norms regarding the use of such technology. Consequently, the Court concluded that what is considered proper behavior with regard to technology in the workplace is not yet clear, nor how the law should apply to such behavior.

The Court assumed (without deciding) that the officers had a reasonable expectation of privacy in the text messages. The analysis focused on whether the police department had an overriding reason to breach that expectation of privacy. Here, the Court found that the review of the officers’ messages were motivated by a legitimate work-related purpose and was not excessive in scope. Specifically, the Court found that the police department searched for personal messages for the reasonable purpose of determining whether 25,000 characters were insufficient for work-related use. Accordingly, the Court concluded that even if the officers had a reasonable expectation of privacy in the content of their text messages, the intrusion into their privacy was justified by a reasonable, work-related reason.

The Effect. City of Ontario v. Quon deals with issues of Fourth Amendment searches and does not directly impact private employers. Accordingly, employers should not assume that because the police department’s search of the officers’ text messages was found to be reasonable in this case, that a similar search of text messages would be found reasonable under other circumstances. Nonetheless, private employers should determine whether the intrusion is for a legitimate, work-related reason. In addition, the intrusion should be reasonable in method and in scope. However, what is “reasonable” or “legitimate” will be judged by the surrounding circumstances. Please contact your employment attorney if you have any questions regarding a possible privacy issue in the workplace.

Please note that the information contained in this newsletter is not intended to provide specific legal advice. You should consult with an attorney and not rely on any information contained herein regarding your specific situation.