Sunday, August 1, 2010


Employer's review of personal text messages found lawful 

By Anthony Oncidi and Jeremy Mittman
Proskauer Rose

On 17 June 2010, in City of Ontario vs. Quon, 560 U. S. (2010), the U.S. Supreme Court unanimously overturned a decision by the U.S. Court of Appeals for the Ninth Circuit in a case involving an employee’s assertion that a government employer had violated the Fourth Amendment by unreasonably obtaining and reviewing personal text messages sent and received on employer-issued pagers.

The employee in question, Jeff Quon, is a police officer for the City of Ontario who had received written policies from the City notifying him that he should have no expectation of privacy in electronic messages that he sent or received on City equipment. The City conducted an audit of his messages and discovered that many of them were not work-related and some contained sexually explicit content. The lower court had ruled that the City’s search of Quon’s messages could have been less intrusive and, therefore, it violated the Fourth Amendment, which prohibits unreasonable searches and seizures by the government.

The Supreme Court, however, disagreed, and held that the search was not excessive in relation to the City’s ultimate objective and was, therefore, reasonable. The Court also noted the City had “made it clear that pager messages were not considered private” through its written policies and practices.

Employers in the United States welcome the Court’s decision in Quon. Although this case involved a government employer, the decision nevertheless reinforces the importance for all employers to implement and disseminate written policies that govern electronic communications in the workplace, which makes clear that employees should not have an expectation of privacy with respect to any communications sent or received on company networks or equipment (including company-issued mobile devices). The decision also makes clear that courts will uphold an employer’s viewing and monitoring of such information when the parameters of and motives for the searches are reasonable.