Michael John Long is an LLM candidate advancing to the PhD at Osgoode Hall Law School
A short while ago, while sitting in the living room at the home of my nurse friend, I noticed a brand new smart phone sitting on her couch side table. I picked it up and began to play with it, only to have it furiously snatched from my hands not thirty seconds later. I soon found out that the smart phone was given to my friend by the hospital at which she works. I then found out moments later that the phone was snatched from my (not to be trusted) hands in order to prevent me, even inadvertently, from changing any details set by the hospital. The conversation quickly turned to a quasi-legal discussion, as we made our way to her patio, pondering over who actually owns the device and whether her private information saved in the phone is protected. At the same time, little did we know, these questions were being pondered by the United States Supreme Court.
On June 17, 2010, the Supreme Court ruled on the issue of privacy of employee text messages sent using employer issued equipment. In the unanimous decision, on City of Ontario v. Quon, the justices ruled that the search of a SWAT team officer’s personal messages on his government owned device did not violate his constitutional rights. The case comes after the City of Ontario, in its role as employer, provided its police officers with pagers that had texting capabilities. In order to determine whether additional charges accrued by the text service, above the amounts allotted to the officers, was due to personal use, the employer decided to audit. The audit revealed that Police Sergeant Jeff Quon had sent personal messages, a number of which were sexually explicit in nature. Quon then sued the City on the grounds that his privacy was violated under the Fourth Amendment of the US Constitution.
The Federal District Court dismissed the suit as the jury found that the audit by the City was to establish usage and not misconduct. On appeal, the Ninth Circuit Court reversed the original decision stating that the City did in fact violate the employee’s constitutional privacy rights by reading his text messages; and all without sufficient notice or policy articulation that the text messages could be seen by others. This decision was unanimously overturned by the Supreme Court. While the Court did not state any broad rules about the privacy of workplace electronic communications it did state that governments are able to check their devices which send communications to ensure that employees are following the rules. The Court also rejected the argument that the review of the messages violated the Fourth Amendment.
And so, what the decision means for US employers differs, in that the narrow ruling involves a public and not private employer. As federal privacy rights, such as seen in the US Constitution’s Fourth Amendment, applies to only public employers, this case has little impact on most private employers. However, as some commentators have noted, California courts have applied state Constitutional rights to private employers before. In such a situation the most thorough mode of operation might be to clearly alert employees that they may have no expectation of privacy in employer owned equipment. This sentiment was noted by Justice Kennedy stating that Quon’s experience as a police officer should have prepared him for the fact that his communications might come under legal scrutiny.
And so, what the decision means for employees is equally as vague at the moment. While the decision indicates the likelihood of similar privacy/technology issues that will arise in the future, the majority opinion of the ruling attempts to avoid addressing the issue, and rather, establishes a basis for future privacy cases. At the moment then, the impact of the decision on employees may simply be a cautionary tale to use your own cell phone when texting information you do not want your employer to read. And while I had no intention to send explicit sext messages to my wife, my girlfriend, or any other colleagues, as Quon had allegedly done, perhaps my friend’s quick snatching of her employer’s device was as smart as the phone itself.
No employee should expect privacy on company provided devices. The company owns it and only loan it to the employee to improve job performance. Even if company policy allows for personal use, that use should be limited, (Quon’s company use was about 1/5 of the total use of the pager) and not have any expectation of privacy attached.
Even if the employer gives assurance of privacy, it should be expected that there will be situations where someone (rightly or wrongly) will access the device and see what is on it. The key point here is that it is NOT your device, it is the EMPLOYERs.
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