Privacy Issues in the Workplace

employees in a staff meeting and in a memorandum that text messages fell within the City's policy as public information and would be subject to auditing.

Quon and other officers exceeded their allotted characters for a number of months and were allowed to reimburse the City. Later, the Chief decided to audit the usage to determine if the allotted character under the City’s contract with Arch Wireless was sufficient. The City obtained transcripts directly from Arch Wireless, and determined that the vast majority of Quon’s usage was personal, not City-business. Quon was investigated and disciplined. Sergeant Quon, his wife, and other employees filed a complaint against Arch Wireless alleging violation of the Stored Communication Act, 18 U.S.C. §§ 2701-2711 (1986), and against the City, the Police Department, and the Chief for violation of their right to be free from unreasonable searches and seizures pursuant to the Fourth Amendment to the United States Constitution, and violation of their privacy rights under Article 1, Section 1 of the California Constitution. The parties filed 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 the search of the text messages violated the appellants' Fourth Amendment and privacy rights because they had a reasonable expectation of privacy in the content of the text messages, and because the search was unreasonable. The court also 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). The City appealed the Ninth Circuit's ruling and the United States Supreme Court agreed to decide the Fourth Amendment questions. The Supreme Court decided this case without determining whether Quon had a reasonable expectation of privacy in the text messages. The Supreme Court discussed the difficulty in predicting how employee privacy rights will be shaped by the rapid evolution of technology used to communicate, society's workplace norms, and laws protecting employee rights, The Court was thus reluctant to issue a broad holding concerning employees’ privacy expectations vis-à-vis employer- provided technological equipment for fear of the implications such a holding would have on future cases. Because this case could be decided on narrower grounds, the Supreme Court made three assumptions for the sake of argument: (1) that Quon had a reasonable expectation of privacy in the text messages sent on the City issued pager; (2) the City's review of the transcript constituted a Fourth Amendment search; and (3) principles applicable to a public employer's search of an

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