• Quon’s “Read Between the Lines” Privacy Guidance to Employees and Employers
  • July 30, 2010
  • Law Firm: Gesmer Updegrove LLP - Boston Office
  • The U.S. Supreme Court recently held in City of Ontario, California v. Quon, 560 U.S. (2010), that, arguendo, a government employee had a reasonable expectation of privacy in the content of their text messages sent and received on a government-issued device and an audit of those messages constituted a search under the Fourth Amendment of the Constitution. The government employer’s audit of the content of those messages nonetheless was reasonable where:

    • the audit was conducted for a legitimate work-related purpose of determining the necessary subscription plan; and

    • the audit was limited in scope to a discrete period of time sufficient to obtain a useful sample;

    • the employee’s off-hours communications were redacted; and where

    • a coherent policy was in place that addressed the medium and technology used to send the messages and limited the employee’s privacy expectations in their communications.

    The privacy rights of third-party, non-employee persons whose communications were also viewed also were not violated in this case, as their arguments relied solely on the perceived unreasonableness of the employee search. The Court specifically stated that a similar search would also be reasonable in the private-employer context. The case provides useful guidance to employers in writing privacy policies and in structuring and conducting employee audits. It is also a good warning that communications containing private information may nonetheless be subject to third-party viewing if sent to an employer-provided device.