Supreme Court Rejects Sweeping Decision in Texting, Workplace-Privacy Suit
An employer’s search of text messages made during work hours didn’t violate an employee’s right to privacy because the search was reasonable and limited in scope, the U.S. Supreme Court ruled in City of Ontario v. Quon Thursday. But the decision is limited and should not be viewed as a broad pronouncement on privacy rights and electronic communication, it said.
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The case involved whether the federal Stored Communications Act barred a carrier from releasing information about a police officer’s text messages made from a government-issued device after he exceeded monthly limits on texting. The employer reviewed transcripts of the messages without a warrant to determine whether the monthly limits of the employer’s plan were too low. It disciplined the officer after finding that many of the officer’s messages were not work related and some were sexually explicit.
The court said the officer had a reasonable privacy expectation in the text messages, but his employer’s warrantless search was motivated by a work-related purpose, making sure that employees were not being forced to pay out of their own pockets for work-related expenses. The review of transcripts was not excessively intrusive because only two months of text messages were reviewed, which the employer believed was a large enough sample to determine if its text message plan was too limited.
The decision should not be construed as a sweeping decision on the scope of an employee’s privacy rights, said the court. “Prudence counsels caution before the facts in this case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations of employees using employer-provided communication devices,” the court said in its decision. “Rapid changes in the dynamics of communication and information transmission are evident not just in the technology itself but in what society accepts as proper behavior. At present, it is uncertain how workplace norms, and the law’s treatment of them, will evolve."
The court had a chance to curtail workplace privacy but didn’t, said Jim Dempsey, vice president for public policy at the Center for Democracy and Technology. “This ended up as a workplace privacy case for government employees,” he said. “The message to government employers is that the courts will continue to scrutinize employers’ actions for reasonableness, so supervisors have to be careful. Unless a ‘no privacy’ policy is clear and consistently applied, an employer should assume that employees have a reasonable expectation of privacy and should proceed carefully, with a good reason and a narrow search, before examining employee e-mails, texts or Internet usage.”
The case is an important reminder to employers that privacy rights apply to an employee’s communications, said Chris Lyon, an employment-law attorney and partner with Morrison & Foerster in California. If employers want to check electronic communications, they should notify their workers that they are being monitored, she said. They also should have a good reason for doing a search and should conduct it in a way that’s consistent with that reason, she said.
The case could have had very far-reaching implications because of how work-related and personal communications have become so interwoven, Dempsey said. Public and private employers expect workers to be always available by cellphone, text and e-mail, he said. The court recognized this trend, but declined to set any new rules, said Dempsey.
It’s important that the court seems to indicate it would judge future disputes regarding the privacy of stored communications on society’s privacy expectations surrounding the new technology, not whether their storage by a third party -- in this case, Arch Wireless -- nullifies a right to privacy, said Kevin Bankston, senior staff attorney with the Electronic Frontier Foundation. “I think this is a hopefully cautious opinion by the Supreme Court that refrained from broad pronouncements on privacy over things like texts,” he said.
USA Mobility, which owns Arch Wireless, is still evaluating the decision, a spokesman said. But the company is encouraged that the Supreme Court unanimously agreed that the city acted reasonably in reviewing transcripts of text messages for legitimate work-related purposes, he said. Some major wireless carriers, which aren’t involved in the case, declined to comment.