The United States Supreme Court currently is considering a case involving the potential privacy of text messages sent and received on employer-provided equipment by employees. While the context is that of a governmental employee, it is possible the Court's ultimate ruling could have implications for employees and employers in the private sector as well.

In City of Ontario v. Quon, the issue presented is whether a police SWAT team member had a reasonable expectation of privacy under the Fourth Amendment with respect to text messages sent and received on his work-issued pager.

The City of Ontario had a written policy that had been signed by the SWAT team member, which provided that employees should not expect privacy in their communications using equipment provided by the City. While the policy did afford limited personal use, the City stated that it could monitor all network activity.

The SWAT team member, along with others, was provided with a pager by the City. They were informed by supervisors that the text messages on the pagers were tantamount to emails and were thus governed by the City's written policy. In essence, there was no privacy of text messages. Or so the City thought.

When the SWAT team member repeatedly exceeded the character limit on his pager, he was told by a supervisor to pay for the overages but that he would not be audited to determine if the text messages were work-related.

As it turns out, the SWAT team member had used the pager to send and receive many personal messages, some of which apparently were sexual in nature.

After the character limit continued to be exceeded, the police chief commanded a review of the messages to determine if the operative character limit was sufficient. This review led to the conclusion that the vast majority of the SWAT team member's messages were personal. He, therefore, was written up for not complying with the City's written policy.

The SWAT team member filed a federal lawsuit, claiming that his Fourth Amendment privacy rights were violated by the review of the text messages.

The trial court concluded that the SWAT team member had a reasonable expectation of privacy in the messages and tasked the jury with the question of whether the City's conduct in reviewing the messages in turn could be considered reasonable on the facts of the case. The jury sided with the City, finding that there was a proper purpose in ascertaining the sufficiency of the character limit.

The SWAT team member filed an appeal. The federal appellate court reversed on the ground that the search in this context was unreasonable as excessively intrusive.

The United States Supreme Court has competing arguments to consider. On the one side, the argument is made that the City's written policy is clear in warning of no expectations of privacy with respect to communications on employer-provided equipment and that that policy cannot be abrogated by the informal statements of a particular supervisor.

On the other side, there is the argument that the written policy was never formally updated to include text messages from pagers within its ambit, and that the SWAT team member had a reasonable expectation of privacy; especially given what he was told by the supervisor.

It will be interesting to see how the Supreme Court rules in this case. The Supreme Court could paint with a broad brush beyond the facts of this case to provide guidance not only in the government employee setting, but also as relates to private employer-employee arrangements.

However, this could be difficult, as what constitutes a reasonable expectation of privacy in one factual context, whether in the governmental or private sector, can vary under myriad other factual circumstances.

Indeed, while there has been recognition that employers in the private sector have wide latitude in monitoring electronic communications of employees when advance notice has been provided, over time, courts have been finding exceptions to that general rule.

Stay tuned.

Biography

Eric Sinrod is a partner in the San Francisco office of Duane Morris. His focus includes information technology and intellectual property disputes. To receive his weekly columns, send an e-mail to with the word "Subscribe" in the subject line.

Disclaimer: This column is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed in this column are those of the author and do not necessarily reflect the views of the author's law firm or its individual partners.

Reprinted with permission of Findlaw.com