United States Supreme Court Upholds Search of Text Messages Sent on Employer-Issued Equipment

City of Ontario, California v. Quon, 2010 WL 2400087 (U.S. June 17, 2010). In this appeal addressing an employer's search of an employee's text messages, the United States Supreme Court found the search to be reasonable, but declined to issue a "broad holding concerning employees' privacy expectations vis-à-vis employer provided technological equipment." Addressing the reasoning for the search (i.e., review of the text message transcripts), the court found the City possessed a "legitimate interest" in ensuring employees were not forced to pay for overages out-of-pocket and that the City was not paying for personal communications. In regard to the search itself, the court found the City's method of reviewing the text message transcripts to be reasonable as it was an "efficient and expedient way" to determine the nature of the overages. In support of this decision, the court noted the steps taken to reduce the search intrusiveness, such as the restriction of the search date range and limitation of transcript review to messages sent by the employee while on-duty. The court also discussed that the employee should have understood or anticipated that it might be necessary for the City to audit the pager messages to determine whether the pagers were being appropriately used, or to assess the SWAT team's performance in emergency situations (the primary purpose for the pager issuance). Finally, the court determined the Ninth Circuit erred in suggesting the City could have used "less intrusive means" to make the overage determinations and also held that the search was not rendered unreasonable by the assumption that Arch Wireless violated the Stored Communications Act by turning over the transcripts.

In-House Impact: Clear policies addressing employee use of network systems and technology is absolutely critical. These policies must be as inclusive and explicit as possible, and should be updated periodically to reflect the adoption of new technology in the workplace. Employers must also take steps to educate employees of the company's right to monitor all communications, including personal items, sent over company networks with work-issued equipment.