Privacy Issues in the Workplace

employee's physical office apply with at least the same force when the employer intrudes on the employee's privacy in the electronic sphere.

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. Even if Quon had some expectation of privacy in his messages, the Supreme Court held that it would not have been reasonable for Quon to believe that his messages were in all circumstances immune from scrutiny. The Department had told him his messages were subject to auditing. As a law enforcement officer, he knew or should have known that his text messages could be reviewed to assess the SWAT Team’s performance in particular emergency situations or some other legitimate purpose. Although there were arguably less intrusive searches available, the Court rejected the suggestion that the City was required to use the least intrusive means to reach its goal. Finally, the Court found that because the other respondents’ claims hinged on a determination that the search was reasonable as to Quon, their Fourth Amendment claims also failed. 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. Notably, the Court's decision only reviewed the Fourth Amendment arguments. The Court did not grant certiorari to review the Ninth Circuit's holding that Arch Wireless violated the Stored Communications Act by providing the City

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