Privacy & Information Security Law Blog

The U.S. Supreme Court announced Monday that it will review the Ninth Circuit’s 2008 decision on employee privacy in Quon v. Arch Wireless Operating Co.  In Quon, the Ninth Circuit considered whether the Ontario, California police department and the City of Ontario violated a police officer’s privacy rights by reviewing private text messages the officer sent using a two-way pager issued by the police department.  The police officer had on several occasions exceeded the limit on the text messages provided by the department-paid plan.  Each time, the officer paid for the overage without anyone reviewing his text messages.  When the officer again exceeded the limit, his supervisor requested from the service provider and subsequently reviewed transcripts of the officer’s messages to determine if the messages were work-related.

The Ninth Circuit found that the supervisor's review of the messages violated the officer's privacy because the officer had a reasonable expectation of privacy in the communications.  The ruling was based primarily on the police department’s failure to consistently enforce its computer usage and monitoring policy that authorized the department to monitor and review employees' communications.  The court acknowledged that, had the monitoring policy been appropriately enforced, the officer would have had no expectation of privacy in the communications.

Importantly, because the officer was a state employee, his privacy claim – and the Ninth Circuit’s ruling that the officer's privacy had been violated – were rooted in Fourth Amendment jurisprudence.  Although the Fourth Amendment does not apply to employee privacy claims against private employers (which instead are  subject to federal wiretap statutes and state law), in practice the "reasonable expectation of privacy" test courts apply to state common law privacy claims is virtually identical to the Fourth Amendment test.  Accordingly, the implication of Quon for private employers was a renewed focus on ensuring robust and consistent enforcement of employee monitoring policies.

Even if the U.S. Supreme Court overturns Quon, such a ruling would not necessarily offer relief to private employers facing state law employee privacy claims.  Some recent state court decisions suggest that non-government employees in some states may have a reasonable expectation that communications concerning employees’ medical or financial issues, income taxes, communications with an attorney, or other personal matters will remain private and not subject to monitoring by employers.  At least one state court has suggested that there is a reasonable expectation of privacy in such communications even where (i) the communications are conducted using company-owned systems and (ii) relevant company policies state that employees have no expectation of privacy in their workplace communications.