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Expert discusses implications for employee privacy in texting case before Supreme Court

On December 14, 2009, the U.S. Supreme Court decided to review whether or not a public employee had a reasonable expectation of privacy in text messages sent to and from his work-issued pager that were stored in the server system of a third-party service provider (City of Ontario v Quon, Dkt No 08-1332). The case is currently pending before the Court. In the meantime, it is worth considering the potential implications of Supreme Court action.

A third-party service provider contracted with the city of Ontario, California, to provide wireless text-messaging services using pagers. The city distributed the pagers to its employees, including the police department of which the employee was a member of the Special Weapons and Tactics (SWAT) team. While it had no policy explicitly addressing text-messaging using pagers, the city did have a general “Computer Usage, Internet, and E-mail Policy,” which stated that use of those devices was limited to city business only and that employees were to have no expectation of privacy when using those devices. City employees also signed an acknowledgment to that effect.

As part of an overage audit, the employer read transcripts of the messages sent by the employee from his work-issued pager, and determined that many of the messages were personal (and even sexually explicit) in nature. After learning that their messages were read by their employer, the officer and the officers he texted sued the city for violating their privacy rights.

As it currently stands, the law allows employers to adopt lawful policies relating to computer, Internet, and e-mail use to protect the assets and reputation of a business, ensure employee productivity, and guarantee compliance with corporate policies. Employers may enforce such policies by disciplining an employee who violates the policy.

Understanding the case

Employees claiming privacy violation. The employees are suing the employer claiming violations of their Fourth Amendment right of privacy, violations of their privacy rights under the California constitution, and violations of the federal Stored Communications Act by Arch Wireless for disclosing the content of the text messages without employee consent, after the City had obtained the text messages as part of an audit of text message use.

Employer claims lack of reasonable expectation of privacy. The employer countered by arguing that the employees lack a reasonable expectation of privacy in the messages, because:

  1. the employer’s usage policy put the employee on notice that he had no expectation of privacy in the text messages; and
  2. the employee should have known that messages could be obtained by third parties through other means, such as the California equivalent of the Freedom of Information Act or in discovery pursuant to a criminal proceeding with respect to matters that the employee participated in as a SWAT team member.

“In the Quon case, even though there was a formal policy stating that the City’s equipment should be used for business purposes only (such that an employee would have no privacy expectation), it is important to note that the employee’s supervisor advised the officers during a meeting that if they paid their overage charges for any excess personal use of their pager, the supervisors would not review the messages,” Joseph Poluka, a partner in the law firm of Blank Rome, told CCH.

Therefore, according to Poluka, an important issue in the case is whether a formal policy can be countermanded by an informal representation made by a supervisor to an employee. “At oral argument before the U.S. Supreme Court, Chief Justice John Roberts, Jr. suggested that it may have been reasonable for the employee to believe that his text messages were private because of the supervisor’s representation and the fact that he had paid the overage charges,” reasoned Poluka. “The employer countered that whether the employee had a constitutional right to privacy in the text messages did not depend only on what he believed, but rather on what was objectively reasonable. It appears that most of the Justices believe that it was not objectively reasonable for the employee to have had an expectation of privacy in the text messages.”

“With the prevalent use of e-mail, text messaging, and instant messaging on employer computers or over an employer’s network, the Supreme Court’s decision will provide direction to employers as to the extent to which their e-mail and Internet usage policies are enforceable,” explained Poluka.

What does this case mean for you?
You probably already have a policy in place allowing employees to reasonably use their workplace computer for personal purposes. Therefore, your employees likely reasonably believe that when they check their personal web-based, password protected e-mail (such as Yahoo! or Gmail) from their work computer, their privacy remains intact and the messages are free from monitoring by the employer.

However, according to Poluka, although oftentimes the data from those accounts does not reside on the company’s server, a forensic expert may be able to access such messages if they are stored in a temporary Internet file. “In addition, if an employee’s password is saved on his computer (e.g., an employee uses the “remember me” feature when logging into his e-mail or a social networking site such as Facebook), the employee may forfeit his expectation of privacy because the password is actually stored on the company’s computer,” Poluka said.

The importance of a policy. Therefore, it is important for employers to have a policy in place addressing the issue of privacy in private communications sent from workplace devices. “The policy clearly should explain that use of the employer’s computers and all associated equipment, software, programs, networks, Internet, e-mail, and other systems operating on the computers is for business purposes only,” explained Poluka. “The policy further should provide that access to all sites on the Internet will be recorded and monitored and that the employer reserves the right to monitor and log all network activity including e-mail and Internet use, with or without notice.”

In addition, Poluka suggests that employees be specifically told that they have no expectation of privacy or confidentiality when using the employer’s computers or network. “Finally, all terms that are used in the policy should be defined, so that there is no ambiguity about what computer systems and programs are covered by the policy,” Poluka said.

This issue is here to stay. When asked where he thinks we’re headed on the issue of employee privacy in communications sent from workplace technologies, Poluka said, “Things will stay interesting.” Beyond that, Poluka said, “The continuing advances in communications technology, the increasing complexity of that technology, and the rapid pace of such changes, make prediction difficult.”

“The level of privacy that will be deemed reasonable undoubtedly will shift over time,” Poluka continued, pointing to a statement made by Chief Justice Roberts during oral argument, “I just don’t know how you tell what is reasonable –I suspect it might change with how old people are and how comfortable they are with the technology . . .”

“Employers will adapt with new policies, and the courts will, with increasing frequency, referee Quon-type privacy disputes,” Poluka concluded. “Perhaps it is a bit oversimplified, but the best advice for everyone remains that, if for some reason you don’t want anyone other than your intended recipient to see a message, then don’t send it.”

Source: Interview conducted by CCH, a Wolters Kluwer company, of Joseph Poluka, a partner in the Philadelphia office of Blank Rome LLP, and Michelle Gitlitz Courtney, 1 Logan Square, Philadelphia, PA 19103; telephone: 215-569-5500 (www.blankrome.com).