Supreme Court Upholds Public Employer’s Search of Employee’s Personal Text Messages:
The U.S. Supreme Court recently held that a government employer’s search of an employee’s text messages stored on an employer-issued pager was reasonable and did not violate the employee’s privacy rights. In City of Ontario v. Quon, 2010 U.S. LEXIS 4972 (U.S. June 17, 2010), a city police officer was disciplined after a data audit disclosed sexually explicit personal text messages on his employer-issued pager. In ruling in favor of the employer, the Court reasoned that the employer’s intrusion on the expectation of privacy “for noninvestigatory, work-related purposes, as well as for investigations of work-related misconduct, should be judged by the standard of reasonableness under all the circumstances”.
While the case fell under the U.S. Constitution’s Fourth Amendment in that it involved a public, not private employer, the courts have sometimes applied state constitutional rights to private employers and could rule that their employees have privacy rights even in work-provided email and text systems. Therefore, it remains the best practice for all employers, public or private, to adopt policies clearly limiting employees’ expectation of privacy in employer-owned equipment, or in communications they make using employer-issued devices and systems, and to proceed cautiously in any review of employee communications in light of the standard adopted in Quon.