Principles for Public Safety Employment

several summary judgment motions. The District Court denied the plaintiffs' summary judgment in full, and granted in part and denied in part the City and Arch Wireless’ summary judgment motions. On appeal, the Ninth Circuit Court of Appeals held that Arch Wireless violated the Stored Communications Act because, as an electronic communications service, its release of the private data required the lawful consent of either the addressee or the recipient of the communications (as the subscriber, the City did not have a right to access the communications). On the privacy issue, the United States Supreme Court decided this case without determining whether Quon had a reasonable expectation of privacy in the text messages. The Supreme Court found that the search was justified at its inception because there were reasonable grounds for suspecting that the search was necessary for non-investigatory or administrative purposes. Specifically, the Police Chief ordered the search to determine whether the character limit on the City’s contract was sufficient to meet the City's needs. The City had a legitimate interest in ensuring that employees were not being forced to pay out of their own pockets for work-related expenses. On the other hand, the City had to determine whether it was paying for extensive personal communications. The scope of the City’s search was also reasonable because it was an efficient and expedient way to determine whether Quon's overages were the result of work-related messaging or personal use. Although it may have been reasonable for the City to review transcripts of all the months in which Quon exceeded his character allotment, the City only reviewed the messages for two months. The investigation was also limited to the review of a redacted transcript covering only messages Quon sent while on duty. Because the Supreme Court did not determine whether Quon had a reasonable expectation of privacy over his text messages, this case should serve as a reminder to employers that they should adopt written policies that put employees on notice that they do not have an expectation of privacy in their electronic communications sent or received via employer property. The policy should also use language broad enough to encompass current and emerging forms of electronic communications used in the workplace. 1. W ORKPLACE S EARCHES The POBR and FBOR prohibit the search of an officer or firefighter’s locker or “other space for storage” that may be assigned to him or her unless: (1) the employee is present; (2) the employee consents to the search; (3) a valid search warrant has been obtained; or (4) the employee has been notified that a search will be conducted. 168 This prohibition only applies to lockers or other storage space owned or leased by the employing department or a firefighter’s licensing or certifying agency. 169 An agency should not open or search an employee’s personal property without the assistance of appropriate law enforcement personnel in conformity with the requirements of the Fourth Amendment of the United States Constitution.

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