Wed, Jul 7, 2010

U.S. Supreme Court Upholds Government Employer’s Warrantless Search of an Employee’s Personal Text Messages on Employer Owned Pager

In a unanimous opinion issued on June 17, 2010 the United States Supreme Court ruled that a search of text messages made from a government issued pager did not violate a government employee's Fourth Amendment right to privacy ( City of Ontario v. Quon, 560 U.S. ___, No. 08-1332, slip op. 17).*
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This closely watched case, while only applying directly to governmental agency searches, provides guidance to private employers regarding the scope of an employee's right to privacy to personal information contained on corporate computers, phones and other equipment.

Decision Summary

The case arose as a result of a search conducted by the City of Ontario, California to determine whether overage charges incurred on government pagers were a result of personal or work related use. Quon was a law enforcement officer for the city. He had previously signed a copy of the city's computer policy, which stated that users should have no expectation of privacy when using the city's computers. The computer policy did not however specifically reference pagers.

Officer Quon was issued a pager and told orally that he would be responsible for paying for any fees incurred as a result of exceeding the monthly usage rate. Because of overage charges incurred on the government issued phones, the police department ordered a search of the contents of the messages on the pagers to determine whether the usage overages were a result of work related or personal communications. The police department's purpose was to determine whether the character limit on the city's contract with its wireless service provider was sufficient to meet the city's needs. When the search was conducted the department found sexually explicit texts on Quon's pager. The matter was turned over to police internal affairs who then excluded from any search any texts that were sent when Quon was off duty. Quon was disciplined as a result of the inappropriate on-duty messages found on his pager. The Supreme Court held that because the search was motivated by a legitimate work-related purpose and because it was not excessive in scope, the search was reasonable. The court rejected the notion that the government employer was required to make the least restrictive search possible under the circumstances.

Direct Impact of the Court's Ruling

The court's ruling means that government employers may conduct warrantless searches of government owned equipment if the search is reasonable in scope and is conducted pursuant to a legitimate work related purpose. Such searches do not violate the government's employee's Fourth Amendment right against unreasonable search and seizure.

Indirect Impact of the Court's Ruling

Although this ruling specifically deals with a government employer reviewing the text messages of a government employee on a government issued communication device, the principles cited in the court's opinion provide important guidance to the private sector.

Important takeaways for the private sector are as follows:

  1. Make sure that the employer has a computer and phone usage policy that explicitly states that the employee has no expectation of privacy for any communications sent or received on corporate owned computers or communication devices;
  2. Make sure that all employees sign the usage policy and that they are trained on its meaning;
  3. When conducting an investigation that involves the review of private employee communications, take steps to ensure that the scope of the search is reasonable and the review serves a legitimate corporate purpose; and
  4. Document the steps taken to limit the nature of the search to evidence the scope was reasonable and not excessive.


*Page number is pending

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