Ninth Circuit Rules Employee Had Privacy Interest in Text Messages Despite
E-Communications Policy
June 27, 2008 - Most employers believe that they have the right to review
their employee’s electronic communications, as long as they have adopted
an adequate policy advising employees that they have no privacy rights in
communications made on the employer’s systems. However, the Ninth Circuit
court's decision last week should cause employers – both public and
private – to re-examine their policies to avoid exposure for privacy
claims. Public employers, who must also comply with constitutional
requirements, should take steps to limit exposure to claims for violation
of the Fourth Amendment right to be free from unreasonable searches and
seizures.
In Quon v. Archwireless Operating Company, Inc., the Ninth Circuit ruled
that an employee’s right to privacy outweighed his public employer’s right
to audit text messages sent from its agency-issued pagers. The key fact in
the decision was that, although the employer had a policy that allowed it
to monitor employee communications, it had not enforced the policy. Had
the employer consistently enforced its policy by monitoring text messages,
the employee would likely not have any expectation of privacy. The court’s
ruling not only impacts public employers, who face unique challenges in
responding to public records requests, but also serves as an abrupt
reminder to all employers within the Ninth Circuit (including Alaska,
Washington, Oregon, and California) about the importance of developing and
consistently following electronic communication policies.
In Quon, the Ontario Police Department audited its employees’ pager usage
to determine whether overage charges were “exclusively work related” text
messages. If so, then the Department would consider increasing the
character limits of its text messaging plan. Because Quon had exceeded his
character limit on numerous occasions, his pager was chosen for auditing.
During the audit, the Department learned that Quon sent sexually explicit
and profane messages to his family and friends from the publicly-owned
pager. After he was cited in an agency memorandum, Quan brought suit
alleging privacy violations under the U.S. and California Constitutions,
as well as violations of the Stored Communications Act.
Prior to the audit, the Department had adopted a rigorous written policy
which made clear that employees’ use of Department email and Internet
systems was subject to review. Quon and other employees also signed policy
acknowledgments stating they had no expectation of privacy in their
electronic communications. Nonetheless, the Ninth Circuit court held that
Quon established a Fourth Amendment claim. The court pointed to two
significant flaws in these policies: first, they did not specifically
cover text messaging; and second, they did not reflect the “operational
reality” of the Department’s practice regarding text messaging.
The court relied on the Department’s “informal policy” to support its
holding that Quon had a reasonable expectation of privacy. The Department
allowed employees to personally pay the overage charges to avoid an audit.
Quon relied on this practice by paying his overage charges on at least
three prior occasions.
The court also rebuffed the Department’s argument that Quon could not have
a reasonable expectation of privacy because under the California Public
Records Act, “public records are open to inspection at all times.…” The
Ninth Circuit court explained that “[a]lthough the fact that a
hypothetical member of the public may request Quon’s text messages might
slightly diminish his expectation of privacy in the messages, it does not
make his belief in the privacy of the text messages objectively
unreasonable.”
Finally, the court admonished the Department for not conducting a
more “reasonable search” of Quon’s text messages. The Ninth Circuit court
offered a range of less intrusive options that the Department could have
used to achieve the audit’s goal. For example, the Department could have
obtained Quon’s consent, or warned him not to use the pager for personal
purposes during a specific time period. Because Quon had a reasonable
expectation of privacy in his text messages, the unauthorized disclosure
of his text messages violated the Fourth Amendment.
Practice Pointers:
Make sure your policies are up to date and include specific language about
all of the technology your company or agency provides to employees (i.e.,
cell phone, pager, blackberry or other similar devices).
Train your administrators, managers, and supervisors to follow your
written policies closely. Allowing exceptions may create an informal
practice or “operational reality” that undercuts the purpose of your
policies.
Make sure your employees are familiar with your policies, both by
obtaining signed acknowledgements and by regularly communicating with
employees about what is expected under the policies.
Consider regularly monitoring your employees' phone, pager, blackberry or
internet use.
Consider providing notice to employees prior to obtaining or disclosing
information about employees’ text messaging, phone, or Internet usage.
For public employers: If you receive public records requests for public
employees’ text messaging, phone, or internet usage, and you intend to
give prior notice to employees before disclosing the record, provide a
longer response estimate to the requester.
For public employers: Make sure your policies and acknowledgments state
that employees’ text messaging, phone, and internet usage are subject to
public disclosure without prior consent or notice.
If you need assistance updating your policies or have additional
questions, please contact Katie Carder, or another member of Foster
Pepper’s Employment and Labor Relations Practice Group or Public
Disclosure Team, or the Foster Pepper attorney with whom you regularly
work.
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