Employer's Review of Employee's Text Messages is an Illegal Search

The Ninth Circuit Court of Appeals recently issued a decision severely restricting employers' right to review the content of their employees' text messages. Quon v. Arch Wireless Operating Co., 529 F.3d 892 (9^th Cir. 2008). The case involved a public employer, and therefore raised constitutional issues not presented per se in the private sector. But the reasoning of the decision will likely carry over to private employers, which are subject to similar invasion of privacy tort law. The decision highlights the importance of strict employer enforcement of policies reserving the right to monitor text messaging (and e-mails) by employees; failure to enforce such policies may effectively waive an employer's right to conduct such monitoring.

In Quon, the City of Ontario, California gave pagers with text messaging services to its police officers for work-only purposes. The police officers were told that the City's policies regarding the use of e-mail and the Internet were applicable to the text messaging pagers. The policies given to employees clearly stated that the "use of City-owned computers, software, programs, networks, Internet, e-mail and other systems operating on these computers" was to be limited to City-related business. The policies also clearly stated that employee access to the Internet and e-mail system was not confidential, that the City reserved the right to monitor employee use of such systems, and that employees "should have no expectation of privacy or confidentiality when using these resources." The policies further provided that the e-mail system could not be put to use for obscene, suggestive, defamatory, derogatory, inappropriate or harassing language. (Such policies are advisable in both the public and private sectors.)

However, the City also had an informal practice regarding the use of the pagers. Officers were told that each pager was allotted 25,000 characters a month, after which the officers were required to pay overage charges. A police lieutenant who was responsible for collecting the overage charges told the officers that he did not intend to audit or monitor the content of their text messages, to see if the overage was due to personal or work-related messages, if they paid the overage charges; basically, he advised that, if an officer did not want his or her messages audited, the officer should simply pay the overage charges.

After a number of officers had overage charges for multiple months, the police department asked the provider of the text messaging services (Arch Wireless) to produce transcripts of the messages, and the provider did so. The police department found that Officer Quon exceeded his monthly allotment by over 15,000 characters, and that many of these messages were personal and sexually explicit. These messages violated the City's written policies.

Officer Quon sued the provider of the text messaging service, the City of Ontario, the police department, and various police officials, asserting that the production and review of the transcripts of his text messages were illegal and unconstitutional. The Ninth Circuit held that Quon had a valid claim against Arch Wireless, for violating the federal Stored Communications Act, 18 U.S.C. §§ 2701-2711, because it wrongly produced the transcripts to the police department. The Court also held that Quon had a valid claim against the City and the police department for an unconstitutional search of the transcripts of his text messages.

In order to make a claim of an unconstitutional search, the Court held, Quon first had to demonstrate that he had a reasonable expectation of privacy in the content of his text messages. According to the Court, the lieutenant's practice of telling officers that their messages would not be audited if they paid their overage charges was evidence that Quon had such a reasonable expectation of privacy. Further, notwithstanding the City's policies putting him on notice that he had no reasonable expectation of privacy in his text messages, the content of Quon's messages was treated the same as the content of a pay telephone call - a communication the content of which is reasonably expected by the caller to be private, even though the fact the call was made is not reasonably expected to be confidential.

Having met the first requirement of an unconstitutional search claim, Quon was then required to show that the police department's search of his text messages was not reasonable. The Court divided this element into two parts: (a) was the search reasonably justified, and (b) if it was justified, was the search reasonably limited in scope to the circumstances that justified the search? In order for Quon to succeed, the answer to one of these questions had to be "no."

The Court assumed that the answer to the first question was "yes," that the search of the text messages was reasonably justified. The police department needed to determine whether its 15,000 characters per month limit was reasonable - the City did not want to compel officers personally to pay for work-related messages. However, the Court found that the answer to the second question was "no" - this search was excessive relative to the justification for the search. For example, the Court reasoned, if the City needed to determine whether its monthly limit on text message characters was reasonable, it could have given advance notice that it was testing the use of pagers for a month and directed employees not to use them for personal messages during that month. Another alternative offered by the Court: the City could have asked the officers to produce transcripts of their text messages with the content of personal messages redacted by the employees. The Court theorized about a third possible alternative: the City could have asked the officers to report the number of characters used for work in a month. Because less intrusive means were available, to accomplish the City's objective, the "search" of the transcripts was unreasonable and unconstitutional.

The bottom line: First, the written policies in this case were fine (although they could have been more explicit about their applicability to text messaging). But the employer's practice here created problems. Second, if an employer believes it is important for text messages to be limited to work-related topics, the employer must strictly enforce its policies. Allowing workers to circumvent the policies by paying for their personal use of the pagers gives the employees a reasonable expectation of privacy in the content of the messages. Third, an employer must have a sound business justification for any monitoring of text messages. Fourth, if an employer wants to test whether the work-related use of pagers exceeds expected or approved levels, the employer should use measures that do not require the review of the content of the messages.

Sherman & Howard has prepared this advisory to provide general information on recent legal development that may be of interest. This advisory does not provide legal advice for any specific situation. This does not create an attorney-client relationship between any reader and the Firm. If you want legal advice on a specific situation, you must speak with one of our lawyers and reach an express agreement for legal representation.

© 2008 Sherman & Howard L.L.C. September 8, 2008

	Contact Us Services Attorneys News and Events Publications About the Firm Inclusiveness Careers Blog In the Media Events and Registration Press Releases Speaking Engagements Articles Client Advisories Subscriptions History Offices Pro Bono Interlaw Contact Us Culture Legal Opportunities Support Staff Publications Client Advisories Home > Publications > Client Advisories > View Employer's Review of Employee's Text Messages is an Illegal Search The Ninth Circuit Court of Appeals recently issued a decision severely restricting employers' right to review the content of their employees' text messages. Quon v. Arch Wireless Operating Co., 529 F.3d 892 (9^th Cir. 2008). The case involved a public employer, and therefore raised constitutional issues not presented per se in the private sector. But the reasoning of the decision will likely carry over to private employers, which are subject to similar invasion of privacy tort law. The decision highlights the importance of strict employer enforcement of policies reserving the right to monitor text messaging (and e-mails) by employees; failure to enforce such policies may effectively waive an employer's right to conduct such monitoring. In Quon, the City of Ontario, California gave pagers with text messaging services to its police officers for work-only purposes. The police officers were told that the City's policies regarding the use of e-mail and the Internet were applicable to the text messaging pagers. The policies given to employees clearly stated that the "use of City-owned computers, software, programs, networks, Internet, e-mail and other systems operating on these computers" was to be limited to City-related business. The policies also clearly stated that employee access to the Internet and e-mail system was not confidential, that the City reserved the right to monitor employee use of such systems, and that employees "should have no expectation of privacy or confidentiality when using these resources." The policies further provided that the e-mail system could not be put to use for obscene, suggestive, defamatory, derogatory, inappropriate or harassing language. (Such policies are advisable in both the public and private sectors.) However, the City also had an informal practice regarding the use of the pagers. Officers were told that each pager was allotted 25,000 characters a month, after which the officers were required to pay overage charges. A police lieutenant who was responsible for collecting the overage charges told the officers that he did not intend to audit or monitor the content of their text messages, to see if the overage was due to personal or work-related messages, if they paid the overage charges; basically, he advised that, if an officer did not want his or her messages audited, the officer should simply pay the overage charges. After a number of officers had overage charges for multiple months, the police department asked the provider of the text messaging services (Arch Wireless) to produce transcripts of the messages, and the provider did so. The police department found that Officer Quon exceeded his monthly allotment by over 15,000 characters, and that many of these messages were personal and sexually explicit. These messages violated the City's written policies. Officer Quon sued the provider of the text messaging service, the City of Ontario, the police department, and various police officials, asserting that the production and review of the transcripts of his text messages were illegal and unconstitutional. The Ninth Circuit held that Quon had a valid claim against Arch Wireless, for violating the federal Stored Communications Act, 18 U.S.C. §§ 2701-2711, because it wrongly produced the transcripts to the police department. The Court also held that Quon had a valid claim against the City and the police department for an unconstitutional search of the transcripts of his text messages. In order to make a claim of an unconstitutional search, the Court held, Quon first had to demonstrate that he had a reasonable expectation of privacy in the content of his text messages. According to the Court, the lieutenant's practice of telling officers that their messages would not be audited if they paid their overage charges was evidence that Quon had such a reasonable expectation of privacy. Further, notwithstanding the City's policies putting him on notice that he had no reasonable expectation of privacy in his text messages, the content of Quon's messages was treated the same as the content of a pay telephone call - a communication the content of which is reasonably expected by the caller to be private, even though the fact the call was made is not reasonably expected to be confidential. Having met the first requirement of an unconstitutional search claim, Quon was then required to show that the police department's search of his text messages was not reasonable. The Court divided this element into two parts: (a) was the search reasonably justified, and (b) if it was justified, was the search reasonably limited in scope to the circumstances that justified the search? In order for Quon to succeed, the answer to one of these questions had to be "no." The Court assumed that the answer to the first question was "yes," that the search of the text messages was reasonably justified. The police department needed to determine whether its 15,000 characters per month limit was reasonable - the City did not want to compel officers personally to pay for work-related messages. However, the Court found that the answer to the second question was "no" - this search was excessive relative to the justification for the search. For example, the Court reasoned, if the City needed to determine whether its monthly limit on text message characters was reasonable, it could have given advance notice that it was testing the use of pagers for a month and directed employees not to use them for personal messages during that month. Another alternative offered by the Court: the City could have asked the officers to produce transcripts of their text messages with the content of personal messages redacted by the employees. The Court theorized about a third possible alternative: the City could have asked the officers to report the number of characters used for work in a month. Because less intrusive means were available, to accomplish the City's objective, the "search" of the transcripts was unreasonable and unconstitutional. The bottom line: First, the written policies in this case were fine (although they could have been more explicit about their applicability to text messaging). But the employer's practice here created problems. Second, if an employer believes it is important for text messages to be limited to work-related topics, the employer must strictly enforce its policies. Allowing workers to circumvent the policies by paying for their personal use of the pagers gives the employees a reasonable expectation of privacy in the content of the messages. Third, an employer must have a sound business justification for any monitoring of text messages. Fourth, if an employer wants to test whether the work-related use of pagers exceeds expected or approved levels, the employer should use measures that do not require the review of the content of the messages. Sherman & Howard has prepared this advisory to provide general information on recent legal development that may be of interest. This advisory does not provide legal advice for any specific situation. This does not create an attorney-client relationship between any reader and the Firm. If you want legal advice on a specific situation, you must speak with one of our lawyers and reach an express agreement for legal representation. © 2008 Sherman & Howard L.L.C. September 8, 2008 Copyright 2000-2013 Sherman & Howard L.L.C. All rights reserved. Privacy Policy \| Terms of Use