• Supreme Court's Decision in City of Ontario v. Quon Does Not Yield Big Changes in Private Workplace Privacy Standards
  • June 29, 2010 | Authors: Benjamin Gastel; John P. Hutchins; Evan H. Pontz; D. Eugene "Gene" Webb
  • Law Firms: Troutman Sanders LLP - Atlanta Office ; Troutman Sanders LLP - Richmond Office
  • Yesterday, the United States Supreme Court declined to create broad new privacy rights for government employees who use electronic communication devices provided by their employers.  As we discussed last month, the closely-watched case of City of Ontario v. Quon had the potential to establish that public-sector employees have a reasonable expectation of privacy when using employer-provided electronic communication devices such as mobile phones and pagers.  Instead, the unanimous Court held that, given the facts presented, the government’s search of two-way pager transcripts was reasonable and, accordingly, the heightened privacy rights afforded to government employees did not protect the communications of the employee in question.

    We previously discussed in detail the facts of Quon, and those facts won’t be re-examined here.  As we discussed, though, the Quon decision was likely to have only limited applicability to private employers, and yesterday’s Supreme Court decision supports our initial take on the case.  The Supreme Court’s ruling is significant in how it applies traditional principles of Fourth Amendment law to the new frontier of electronic communications, but the Fourth Amendment does not apply to private employers. 

    Justice Kennedy, writing for the majority in Quon, noted that the case “touches on issues of far reaching significance” in finding the search of Quon’s pager transcripts to be reasonable based on established Fourth Amendment principles.  Avoiding the question of whether Quon had a legitimate expectation of privacy in his text messages, the Court found that the government employer acted reasonably in reviewing the pager transcripts to investigate work-related misconduct, specifically, whether government-issued pagers were being used for personal purposes.  The Court decided the case on these narrow grounds in order to avoid “elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear.”  In this regard, Quon is significant in the way it cautiously approaches evolving attitudes toward privacy and technology.

    While the facts of Quon do not directly translate to the private sector environment, private employers can still learn from the mistakes of the government employer in Quon.  We previously identified the following three lessons that employers could take from the Quon case:

    1.  Inspection of out-sourced communication systems (i.e., text messages, cell phones, etc.), without an employee’s consent, likely violates the Stored Communications Act.  The Ninth Circuit Court of Appeals in the Quon case held that it did, and that ruling was not reviewed by the Supreme Court.  In the future, third-party vendors are unlikely to provide information requested by an employer without employee consent. 

    2. Consistent training and enforcement of any “acceptable use” policy is critically important, including correction when unauthorized deviations from the policy by supervisory personnel are discovered.  The surest way to avoid being the “test case” for the next Quon-like plaintiff is to maintain a good written policy and consistently apply it.

    3. It is a good idea to regularly review and update your “acceptable use” policy to make sure that it is broad enough to cover advancing technology, such as texting, instant messaging and social networks.

    As we anticipated, these lessons still apply after yesterday’s Supreme Court decision