First published in the June 1, 2010 edition of the Orlando Sentinel

Court to Lift Lid on Pandora’s Box

Employers Must be Prepared to Act Quickly as

Supreme Court Nears Decision

Rapid advances in communications technology not only poses a unique set of challenges to employers, but has also quickly outpaced the legal system. In the coming weeks things are sure to escalate as the Supreme Court of the United States nears a decision in the landmark case of City of Ontario v. Quon (08-1332).

This is the first time the Court has addressed a public employee’s expectation of privacy in the workplace as it relates to new forms of communication – specifically, text messaging, which is rapidly displacing traditional forms of communication.

Sergeant Jeff Quon, a member of the City of Ontario’s SWAT team, was issued a police department-owned pager as part of a move to help members of the department coordinate quickly during emergency situations.

While the California city has a robust electronic communications policy, issues of text messaging were not specifically addressed in writing. In addition, Quon’s supervisor, Lieutenant Steve Duke, made verbal statements to Quon and others that personal use would not be audited if all overage charges were reimbursed to the city. However, Quon’s excessive messages were ultimately reviewed, leading Quon and three others to sue the city and lose at the trial court level. 

However, the U.S. Court of Appeals for the 9^th Circuit reversed the decision, ruling in part that reading the messages without a clear written policy in place, combined with the Lieutenant’s statements regarding reimbursement for personal use, violated the officer’s Fourth Amendment protection against unreasonable searches.

The case before the Court involves public employees, but it is not unusual for case law in the private sector to be affected by decisions related to the government. Our world has shifted dramatically with the advent of BlackBerrys, smart phones and laptops. Separation of business and personal communications has become muddied. When you add FaceBook, Twitter and emerging technologies to the mix, employers are hard pressed to keep policies up to date.

If the appeal by the City is won, and the Ninth Circuit Court’s opinion is reversed, public employees, and all those who communicate with them, can assume that they have absolutely no expectation of privacy while communicating on the public employer’s equipment.

Should the city lose its appeal, agencies everywhere will be faced with a careful review of their policies and auditing who in their agency is creating exceptions to their policies, either verbally or by practice. Depending on the rationale of the opinion, lawsuits for reviewing private messages of public employees may skyrocket. This includes school boards investigating inappropriate messages exchanged between coworkers without a clear suspicion of misconduct.

Regardless of the outcome, employers everywhere must continually review and update communications policies to reflect the rapidly changing technology landscape. Policies must be signed and frequent training, along with strong, consistent enforcement is essential. Businesses should also identify methods to segregate personal messages, adjust backup procedures and identify less intrusive methods for auditing an employee’s use.