Most white-collar employees have telephones on their desks, and most employers, myself included, do not mind if an employee uses the phone occasionally for personal purposes. It would never occur to me to eavesdrop or surreptitiously record those conversations.
On the other hand, I, and many other employers, warn employees that they should not expect privacy for anything they do on the company’s computers. I reserve the right to preserve and review any material on the machines I provide. This is partly to ensure that we comply with laws and regulations, and partly to make certain that our facilities are used securely and appropriately. I do not object to a few personal emails or other incidental (but safe and appropriate) personal use, but I reserve the right to monitor it.
These days, I also provide sophisticated cell phones to our management team. We use them to stay in close touch with the office and with one another. These devices, likewise, are available for incidental personal use. Which brings up the question: Do I have the right to listen to voicemails or to read text messages and emails my employees send and receive on their phones? And if I do have that right, is there any reason for me to do so?
The U.S. Supreme Court is taking up the question in the case of a police officer employed by the city of Ontario, Calif. Jeff Quon, a member of the police department’s SWAT team, was given a city-owned pager that could send and receive text messages. The city permitted officers to use the devices for personal messages, as long as they reimbursed the city for any additional costs.
When Ontario’s police chief became curious about how the devices were being used, the carrier, Arch Wireless, turned over a stack of text messages. Most of Quon’s usage was personal, and many of those personal messages were sexually explicit exchanges with his girlfriend.
After they learned that their messages had been released, Quon and three fellow officers sued, claiming the disclosures violated their Fourth Amendment protection against unreasonable search and seizure. A federal district court rejected the officers’ claim, finding that the police chief’s interest in seeing whether the wireless service’s monthly character allowance was adequate for business use constituted a reasonable justification for the search. A three-judge panel of the Ninth Circuit Court of Appeals, however, sided with the officers, holding that the department’s informal policy permitting personal use created a “reasonable expectation of privacy” despite the city’s official warnings that it reserved the right to monitor “all network activity.”
The U.S. Supreme Court recently agreed to review the case. I think it is likely to reverse the Court of Appeals, and with good reason.
By the appeals court’s logic, it is unreasonable for an employer to “search” its own equipment, even after notifying employees that it reserves the right to conduct such searches. If this is true, how would the employer be able to determine if the equipment was being used as it was intended, rather than to facilitate drug smuggling or other crimes?
I do not feel any need to monitor my employees’ telephone calls. But if I notified them that their calls on company phones might, indeed, be monitored or recorded, they would have no reasonable expectation of privacy even if I permitted them to continue to make and receive personal calls. Likewise, employees can send and receive personal emails, but they know I have access to them and can read them if I wish.
Employees who want privacy have a simple option: They can carry personal phones in addition to the company’s equipment. What they do with their own devices is their business.
Whether the police chief’s action was necessary is debatable, but it certainly did not amount to an unreasonable search of his own department’s property. I am surprised that the appeals court missed the simple and obvious answer in favor of a tortured application of the Fourth Amendment. I doubt the Supreme Court will make the same mistake.