Will Supreme Court’s Ruling in Quon v. Ontario Yield Big Changes for Private Employers?
This term, the United States Supreme Court considers a case of particular interest to those who care about privacy law. On April 19, 2010, the Court heard argument in Ontario v. Quon, U.S., No. 08-1332. A ruling is expected soon. The case is potentially important for employers who rely on written, explicit “acceptable use” policies regarding company-owned electronic systems, especially where those policies attempt to make it plain that employees have no reasonable expectation of privacy in communications sent or received over those systems. This kind of notice to employees has been considered the lynchpin to employers’ freedom to monitor use of their electronic communications systems.
Here are the facts: The city of Ontario (CA) police department gave Quon and others pagers to use on the job. The pagers included a texting function, with the data service provided by a private vendor, Arch Wireless, which charged the department a flat fee per employee, up to a certain text limit. The city did not have a written policy regarding text messages, but it did have a more general policy regarding the use of city-owned electronic communications systems, restricting use to employment-related purposes. The policy stated that communications over city-owned systems would be monitored and that they were not confidential. Quon was aware that the policy applied to the pagers.
Many city employees, including Quon, regularly exceeded the text limit. Despite the policy against personal use, Quon’s superiors verbally notified employees that they could simply pay any overage charges and thereby avoid any inquiry into personal vs. job-related texts. This soon became standard practice. Eventually, those in charge tired of acting as bill collectors and launched an audit into personal use of texts by obtaining transcripts from Arch Wireless, without the consent of the employees. With regard to Quon, auditors found sexually suggestive or explicit texts, including with his wife, and with another woman who was not his wife.
Quon sued the city, claiming that the city’s audit was an unreasonable search and seizure, violating the Fourth Amendment. (Quon and the recipients of his texts also successfully sued Arch Wireless under Stored Communications Act, but that claim is not before the Supreme Court.)
Predicting the outcome of a Supreme Court case is risky business, but we’re going out on a limb to forecast that the Quon case is unlikely to dramatically change the law in regard to a private employer’s reliance on an “acceptable use” policy as a basis for monitoring electronic communications systems. That’s because the defendant in Quon is the government, subject to the Fourth Amendment. Private employers are not subject to the Fourth Amendment. Thus, the fundamental inquiry in Quon – whether the city’s audit of text messages amounted to an unreasonable search and seizure – is not the legal standard applicable to a private employer in a similar case. The standard for a common law “intrusion on seclusion or solitude” claim – which is the type of claim that would be at issue in a case against a private employer – is more elevated. Such a claim is not even recognized in every state, but where it is available, it generally includes requirements that the plaintiff also prove that the intrusion would be “highly offensive” to a reasonable person and that the intrusion cause the plaintiff anguish and suffering. Those elements are not at issue in Quon.
So, in Quon, the Supreme Court may hold that:
- Because of the written policy, which Quon admittedly understood applied to the pagers, Quon had no reasonable expectation of privacy;
- Despite the verbal deviation from the policy, inspection of Quon’s text messages was not an unreasonable intrusion on his privacy, given the city’s legitimate government interest in assuring that the pagers were only used for city-related business;
- Because of the verbal deviation from the policy, Quon had a reasonable expectation of privacy and the inspection of text messages was an unreasonable intrusion on that privacy, under the Fourth Amendment.
Only the third of these results would result in a victory for Quon, but even that result should not have an enormous impact on private employers, because the standard being applied is just not the same.
Nonetheless, private employers should take three important lessons away from the Quon litigation (including the lower court rulings), regardless of the opinion issued by the Supreme Court:
(1) Inspection of out-sourced communication systems (i.e., text messages, cell phones, etc.), without an employee’s consent, likely violates the Stored Communications Act. The Ninth Circuit Court of Appeals in the Quon case held that it did, and that ruling will not be reviewed by the Supreme Court. In the future, third-party vendors are unlikely to provide information requested by an employer without employee consent.
(2) Consistent training and enforcement of any “acceptable use” policy is critically important, including correction when unauthorized deviations from the policy by supervisory personnel are discovered. The surest way to avoid being the “test case” for the next Quon-like plaintiff is to maintain a good written policy and consistently apply it.
(3) It’s a good idea to regularly review and update your “acceptable use” policy to make sure that it is broad enough to cover advancing technology, such as texting, instant messaging and social networks.
We will follow up on the Quon case when the Supreme Court issues its opinion.