The U.S. Supreme Court has decided to hear a case that centers on text-messaging privacy policies for employees in the workplace. The Court could reinforce employees’ rights, prompting employers to issue ever more stringent policies on workplace communications, including stepped-up monitoring in order to maintain their right to view such messages.
The case, City of Ontario v. Quon, revolves around the question of whether the Ontario, Calif., police force had the right to read text messages sent by its employees — and whether Arch Wireless, then the city’s telco provider, violated the employees’ rights by revealing their messages.
The police department did not have a formal policy about text-messaging, but it did have a general computer, Internet and email policy, which stated that use of such equipment and services was limited to city business. In practice, though, the policy was ignored and — as would prove key to the case — undermined by a lieutenant who collected additional money from police officers when they exceeded their 25,000-character text-messaging “allowance.”
Eventually, the lieutenant’s chief ordered transcripts of text messages for auditing purposes, which led to the discovery that Jeff Quon had been sending sexually explicit messages that clearly were not official business.
Upon learning his messages had been read by others, Quon sued the department for violation of his privacy. The case made its way to the 9th Circuit, which held that the police department violated Quon’s Fourth Amendment rights against unreasonable search and seizure.
Technicalities at Issue
Without several extenuating circumstances, Quon’s argument easily could have been lost. It has been widely established, for example, that emails sent from a company’s servers are the company’s property and employees have no reasonable expectation of privacy. Text messages, however, are sent and maintained by the vendor’s infrastructure and do not reside on company property.
“There is a difference between electronic and remote messages under the current law — a difference that many employers and workers don’t distinguish,” Peter Vogel of Gardere Wynne Sewell told the E-Commerce Times.
This point is debatable under existing laws, argued Christopher M. Collins, an attorney with Vanderpool, Frostick & Nishanian.
“I don’t see how a policy for extra texting would invalidate an express statement stating that personal communication is not allowed on police equipment,” he told the E-Commerce Times. “I see no reason why a surcharge for excessive use would lead to the creation of an expectation of privacy and somehow undermine the fact that this was an employer-provided service.”
If the police department had issued a specific policy prohibiting personal texting, Quon wouldn’t have had a case. However, it did not. Furthermore, the lieutenant’s tacit approval of employees’ personal use — by collecting the money for the overages — negated any influence such a policy might have had.
Next-Gen Employment Policies
It is possible the Supreme Court could establish that employees have an unfettered right to privacy regarding text messages sent while on the job. It is also possible that it will strike down that notion, but still decide the Quon case on very narrow grounds, leaving employers in the dark as to how to craft their policies.
“This case will have very interesting ramifications depending on what the Supreme Court does,” Vogel said.
Essentially, it is wide-open legal territory.
“I can see this going any number of ways, from the Court deciding the case on very narrow grounds to the Court establishing — or stripping away — significant privacy protections currently enjoyed under law,” added Vogel.
The Ninth Circuit pointed out that the city’s policy specifically mentioned email but not text-messaging, so it is arguable that it didn’t cover text messaging, Roy Hadley, an attorney with the international law firm Bryan Cave, told the E-Commerce Times. If nothing else, this likely will lead to new practices in which employers claim the right to read any message sent from any device — just to cover themselves.
Big Brother by Default
It may also lead to routine monitoring of communications — even if a company has no reason other than to maintain its right to do so.
One fact that distinguishes this case — and makes employers nervous — is that Quon assumed that payment for his additional messages meant he had an expectation of privacy.
The police department did nothing to debunk that assumption, Gary Friedman, partner with Weil Gotshal, told the E-Commerce Times.
“That was central to the Ninth Circuit Court’s decision,” he said. “If that practice hadn’t existed, the Court might have found that there was no reasonable expectation of privacy because of the department’s broader policy with respect to emails and Internet usage.”
In short, the Ninth Circuit placed greater weight on the practices at the department than on its written policy, he said.
“The reason this case is different is because the department didn’t enforce its policy,” Chris Parlo of Morgan, Lewis & Bockius told the E-Commerce Times. If the decision turns on that, any employer’s right to view communications could be at risk if it failed to follow the letter of its policy.
This could lead to employers fearing they might waive their right to view employee emails or text messages if they should allow a long period of time to go by without doing so.
A typical scenario in most workplaces, Parlo explained, is that the company maintains its right to view messages but does not do so unless it has a reason, such as a claim of harassment or a customer complaint.
“Maybe a year has gone by without the company having a reason to read its employees’ emails,” he said. “Now, though, it has a reason. The question is, can it still do so?”
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The unique facts of the Ontario case distinguish it from anything going on with companies’ "digital" policies. Basically, the police officer’s boss was charging department members when their texting exceeded what the police department gave its officers. Just how many companies will have a comparable fact pattern?
I disagree with my colleagues on the "Use It or Lose It" argument that they claim arises from this case. It wasn’t that the city didn’t use the policy; it was that the city permitted a police officer private gain, contrary to the policy. Users of services purchased in private transactions typically have not only a greater expectation of privacy but an actual right to it.
This opinion (once it is issued next year) should NOT change policies or their implementation but it SHOULD put companies on notice that they SHOULD implement digital policies.
James C. Roberts III
http://www.globalcaplaw.com