Fordham Law


Public employees: Employers can read your text messages, court rules

Joel Reidenberg in San Jose Mercury News, June 18, 2010

Media Source

By David G. Savage

Los Angeles Times
Posted: 06/17/2010 10:11:23 PM PDT
Updated: 06/17/2010 10:48:27 PM PDT

WASHINGTON — Employees who want to send highly personal notes to a romantic partner were given a word of warning by the Supreme Court on Thursday: Don't use the messaging system supplied by your employer if you want to avoid embarrassment.

In a 9-0 ruling, the justices rejected a broad right of privacy for workers and said a supervisor may read through a public employee's text messages if he or she suspects work rules are being violated.

The decision was the high court's first to consider the privacy rights of employees who send messages on the job. It comes at a time when most U.S. workers spend at least part of their day talking on phones or sending messages on computers or cell phones, many of which are supplied by their employers.

At issue was whether the Fourth Amendment's ban on "unreasonable searches" puts any limits on searches by public employers. The court said the limits were minimal, so long as the employer had a "work-related purpose" for inspecting an employee's desk or reading the messages sent by the employee on its paging system.

The high court's action, said one legal expert, didn't address the central privacy issues.

"They completely punted on the issue of a reasonable expectation of privacy," said Joel Reidenberg, a Fordham University law professor and the director of the Center on Law and Information Policy. The justices did not "lay out any boundaries" for what public employees can expect, he said.

This decision applies directly to the more than 20 million employees of state and local governments, as well as federal workers. In the past, the court's decisions on the right to privacy have influenced decisions in the private sector.

The ruling tossed out a privacy lawsuit brought by a former police sergeant against the police chief in Ontario. Concerned that officers were using their text pagers mostly for personal messages, Chief Lloyd Scharf decided in 2002 to read some of them. He learned that most of the messages sent by Sgt. Jeff Quon were personal, and some were sexually explicit. Some were sent to an ex-wife, and others to a girlfriend. In August 2002, for example, the audit found that Quon had sent or received 456 messages, but only 57 were work-related.

After learning his messages had been read, Quon sued Scharf and the city, and won a ruling from the U.S. 9th Circuit Court of Appeals. Its judges said there was no need to snoop through Quon's personal messages. They noted that Quon's commanding officer had told him he could use the pager for personal messages, so long as he paid the cost.

But the Supreme Court disagreed and said the law tilts the balance in favor of the employer, not the employee. A public employee has at most "a limited privacy expectation" when using a text pager supplied by the police department, the justices said.

"Because the search (by the police chief) was motivated by a legitimate work-related purpose and because it was not excessive in scope, the search was reasonable," said Justice Anthony Kennedy in City of Ontario v. Quon.

More than 20 years ago, in its only similar ruling, the high court had upheld the search of an office and the desk of a doctor who worked for a state-run hospital in Northern California. In that case, the justices said that while the doctor had some right to privacy in his desk, hospital administrators could search if they had a legitimate basis for suspecting some wrongdoing.

In Thursday's opinion, the court said this same rationale applies to messages sent on a texting system that was supplied by the public agency.

The lawyer for Quon called the ruling a setback for employees everywhere. "It is a very bad opinion. They are chipping away at the constitutional rights of employees. It means privacy rights are very limited," said Michael McGill, a lawyer in Upland.

Kent Ashland, a lawyer for Ontario, said the ruling vindicated the actions of the police chief. "This says what they did was reasonable in light of the circumstances," he said. He also said the ruling was not a complete defeat for workers. "The court says there must be a legitimate reason for the search. It protects privacy to that extent," he said.

The text messaging case drew wide interest among experts in workplace law and privacy. Kennedy cautioned the decision was "narrow" and did not seek to resolve all the disputes that will arise in an era when many employees spent much of their day using computers and cell phones.

"The court must proceed with care," he said. "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."

Business lawyers said they advised employers to tell employees they do not have a right to privacy when they use a computer or cell phones supplied by the company. And employees need to heed the warning, said Damon Dunn, a Chicago lawyer. They "need to anticipate their communication devices may be monitored for seemingly routine business purposes," he said, "even if the search reveals intimate and embarrassing information."