On June 18, 2008, the Ninth Circuit Court of Appeals addressed the issue of an employee’s expectation of privacy in text messages sent and received via employer-provided devices, holding that an expectation of privacy depends on both the written policies and the “operational realities” of the employer. Quon v. Arch Wireless Operating Company, et al.
In Quon, the Ontario Police Department issued text messaging pagers to its officers for official use. The Department had a Computer Usage, Internet, and Email Policy which advised employees they had no expectation of privacy in their usage of computers, email, or the internet, and that personal usage of these devices was prohibited. In addition, a meeting was held in which employees were advised that the Policy applied to Department-issued text messaging pagers. However, a Commander with the Department’s Administration Bureau advised the staff during a meeting that the content of text messages would not be audited if employees paid for any overage charges for usage exceeding the monthly character limit under the Department’s contract with its service provider, Arch Wireless. Quon had exceeded the character limit three to four times and paid for his overages without a review of his text messages.
Despite this informal policy, and after repeated incidents of officers exceeding their monthly character limit, the Department requested text message records from Arch Wireless. Upon review, the Department determined that many of the messages were personal in nature and often sexually explicit. An Internal Affairs investigation resulted. In response, several officers filed a lawsuit alleging, among other things, breach of privacy against the Department.
The court found that although employees of the Ontario Police Department were advised that the Department’s Computer Usage, Internet, and Email Policy applied to the text messaging pagers, the Department’s “operational reality” of not reviewing messages if employees paid for overages created a reasonable expectation of privacy in the text messages.
This case serves as a good reminder to create clear written policies advising employees that they do not have a reasonable expectation of privacy in their text messages (or other electronic communications) sent and received via employer-provided devices, and to ensure that the practices of the employer are consistent with the written policies. The Quon case warns employers that a well-intentioned written policy can be rendered meaningless if “operational realities” contradict the written policies.
Click here to read the full opinion.
Keesal, Young & Logan Employment Group
