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Privacy Has Its Place, But Not Necessarily At Work

If you want to keep your personal business to yourself, you should not conduct it at work — especially not on your employer’s equipment.

Though it seems obvious to me, Sgt. Jeff Quon, a police officer from Ontario, Calif., had to go all the way to the U.S. Supreme Court to learn this lesson. The court ruled 9-0 in favor of the obvious, reversing a federal appellate court’s prior decision.

As an employee of the Ontario Police Department, Quon was issued a pager capable of sending and receiving text messages. He signed a “Computer Usage, Internet and E-mail Policy” stating that “use of these tools for personal benefit is a significant violation of city of Ontario policy” and that “users should have no expectation of privacy or confidentiality when using these resources.” But Quon’s immediate supervisor, Lt. Steven Duke, said officers could send and receive personal messages on the pagers as long they paid for any overage charges.

Quon took full advantage of this informal policy. He did not just occasionally text his wife to say he’d be home late or to ask if he should pick something up from the grocery; he used the pager to send numerous sexually explicit messages to his girlfriend. Quon reportedly sent or received 28 messages on an average workday, with only an average of three messages related to police business. Each month, he paid for the overages.

After a few months of the informal texting policy, Duke found that certain officers routinely exceeded the wireless plan’s 25,000-character limit, and he got tired of playing bill collector. Police Chief Lloyd Scharf ordered a review of the message histories for the officers with the highest pager use, purportedly to determine whether the character limit was adequate for work purposes. Scharf did not want officers who only sent a few personal messages to have to pay overage charges due to a large volume of work-related texts. The wireless carrier, Arch Wireless (now USA Mobility), handed over the relevant transcripts, including Quon’s.

Quon sued the city. Since he was a government employee, Quon alleged that the search violated his Fourth Amendment protections against unreasonable search and seizure.

The Ninth U.S. Circuit Court of Appeals surprisingly sided with Quon, finding that he had had a “reasonable expectation of privacy” because of the informal policy set by Duke. The court accepted Scharf’s explanation that the review of Quon’s messages was to determine if the character limit was adequate, but it concluded that there was “a host of simple ways to verify the efficacy of the 25,000 character limit (if that, indeed, was the intended purpose) without intruding on Appellants’ Fourth Amendment rights.” The search was therefore unreasonable in scope and thus unconstitutional, the Ninth Circuit said.

The Supreme Court decided not to officially address the question of whether Quon had a reasonable expectation of privacy, concluding that “The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear.” In spite of this hesitance, however, the court did comment that “Even if [Quon] could assume some level of privacy would inhere in his messages, it would not have been reasonable for Quon to conclude that his messages were in all circumstances immune from scrutiny” and that “the extent of an expectation is relevant to assessing whether the search was too intrusive.”

Unlike the Ninth Circuit, the Supreme Court stated that the search was “an efficient and expedient way to determine whether Quon’s overages were the result of work-related messaging or personal use.” It was a reasonable means of carrying out a necessary work-related task and did not an infringe Quon’s Fourth Amendment rights. The opinion stated that “Even assuming there were ways that OPD could have performed the search that would have been less intrusive, it does not follow that the search as conducted was unreasonable.”

In spite of the court’s reluctance to “establish far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices,” the case has broad implications for employees in both the public and the private sectors. It establishes that employers have a right to look into how employees are using their organization’s resources, and that an employer’s method of investigation need only be reasonable in scope, not necessarily as limited as possible. For private employers rather than the government the standards are likely to be even looser, since Fourth Amendment concerns typically do not apply to private parties.

States may respond by updating their own laws governing workplace privacy matters, but the bottom line is likely to remain the same: Employees “need to anticipate their communication devices may be monitored for seemingly routine business purposes even if the search reveals intimate and embarrassing information,” as Chicago attorney Damon Dunn put it.

In other words, if you truly value your privacy, do your sexting on your own device and on your own time.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us” and Chapter 4, “The Family Business."

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