The U.S. Supreme Court released its long-awaited decision in City of Ontario v. Quon, holding that based on the facts of the case, the government employer’s review of employee text messages transmitted on government pagers provided for work use, did not constitute an unlawful search in violation of the employee’s Fourth Amendment constitutional rights.  The case arose after some police department employees routinely exceeded the message (character) limits on their department-issued work pagers, and an internal review of the excess message volume revealed a variety of sexually explicit messages and a substantial proportion of personal, non-work communications during on-duty hours, leading to employee discipline.  Both the police department (City) and the paging service provider (Arch Wireless) were sued by employees, as well as by other parties to the text messages reviewed by the City. 
The Supreme Court’s decision finds that under the facts and circumstances of the specific case, the employees’ reasonable expectation of privacy in the content of their pager messages was overcome by the employer’s reasonable inquiry, which was “motivated by a legitimate work-related purpose, and  ‘not excessive in scope’ for that purpose.”  Hence, no Fourth Amendment unreasonable-search violation occurred and no secondary claims hold up. The facts of the case presented a number of knotty privacy problems which the Supreme Court did not decide, and instead the case was resolved largely on a Fourth Amendment basis, which typically would not even apply in the case of a private, non-governmental employer.  In any event, the case highlights again for employers, both private and public, that (1) employer policies on use of computers, email, other electronic communications, and employer provided equipment, really do matter; (2) such policies should be reviewed and updated, including to reflect both current technologies, and the actual practices of the employer; (3) we continue to recommend that, while employers should act reasonably and with due respect for employee privacy (acknowledging the state Constitutional status of personal privacy in California), private employers are usually well served with an express policy negating any employee expectation of privacy in their use of employer-provided equipment and facilities on the job.  (Ontario v. Quon, U.S. Supreme Court No. 08-1332, June 17, 2010)

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