As reported here a few months ago, the Supreme Court was poised to take on a controversy which, depending on the breadth of the opinion, could have ramifications for the vast majority of employees.
The case involved a California SWAT team member who used his department-issued pager for personal use. Although the department policy stated that the pagers belonged to the department, and that the individuals had no right to expect privacy in their use, the reality had altered over time. Quon’s supervisor told him that he must pay for all over limit charges on the pager to avoid an audit. Quon reimbursed the city every month.
The department decided to audit the pager use, since a number of employees were exceeding the limits on their text messaging, leading the brass to think that people were using the equipment for personal use during work hours. In the audit, they discovered that Quon had sent (and received) sexually explicit text messages with his estranged wife and his girlfriend. He was disciplined. Both women, as well as a friend of Quon’s whose personal messages had been intercepted, joined him in the suit against the department for violation of their privacy rights.
The Supreme Court elected not to address directly the extent to which r a public employee enjoys a privacy right in this setting. Under the Fourth Amendment, a person has the right to be free of unreasonable searches and seizures by the government. The Supreme Court unanimously concluded that the search of the pagers’ text messages was acceptable. “Because the search was motivated by a legitimate work- related purpose, and because it was not excessive in scope, the search was reasonable . . .”
The pager user in this case, together with other groups filing briefs on his behalf, urged the Supreme Court to approach the case from the vantage point of the privacy concerns implicated by any employer intruding on an employee’s private messages. But the Supreme Court often (though by no means always) prefers to limit its decision to a narrow point of law facing it. Here, a public employee whose on the job messages were likely to be scrutinized after a typical SWAT team encounter had an insufficient expectation that his messages would not be reviewed.
Private sector employees will not have the ability to complain that they were subjected to an unconstitutional search and seizure when their employers review their email or text messages. With the proliferation of electronic communication, it is more likely that state laws will need to be enacted to address these issues.