Quon – Text Messages at Work
By Mary Mack, Esq., Corporate Technology Counsel, Fios, Inc.
I have no doubt Ralph Losey will take issue with my assessment of the recent Quon case. He and I, along with Brett Anders, will include Quon in a lively Case Law Update. Register here.
The Supreme Court pleasantly surprised worried employers in Quon (City of Ontario, California, et al. v Quon et al., —S. Ct. —-, 2101 WL 2400087 [June 17, 2010]).The outcome of the case was as favorable to employers as it could possibly be. Even though the employer in the case is a government entity, the Court made it clear that Quon applies to private employers as well (“the search would be ‘regarded as reasonable and normal in the private-employer context’”).
While not giving absolute guidance as to what is acceptable and what is not acceptable, the Court gave great latitude to employers, even if their request subjected their carrier to liability under the Stored Communications Act (SCA) (Section 1979, 42 U.S.C. Section 1983; 18 U.S.C. Section 2701 et seq.).
Employers can do the following to buttress their reasonableness, should it be called into question:
1. Update Computer Policies to include emerging media and forms of communication; including text messages, “tweeting,” blogging and using other forms of social media like Facebook, LinkedIn and MySpace.
2. Reiterate the level of privacy an employee can expect.
3. Assert no privacy right to non-employees communicating with employees in their Computer Policy.
4. Sample, rather than engaging in wholesale monitoring.
5. Monitor for a legitimate work-related purpose.
6. Design protocols to limit monitoring of off-duty communication.
The case
A police official who sent text messages and the recipients with whom he corresponded sued the employer based on the SCA. The department did have a computer policy regarding personal use of email, but it had no policy regarding text messages. The Court considered that the policy covered texting, in part because there was an announcement at a staff meeting and a written follow-up to Quon, among others, stating: “…This means that [text] messages would fall under the City’s policy as public information and [would be] eligible for auditing.”
Yet, Duke, the manager responsible for the City’s contract with Arch Wireless, the carrier in question, told Quon that he did not intend to audit the messages and suggested Quon pay the overages due to exceeding the number of allotted characters for text messages to avoid monitoring. Each time Quon exceeded his limit, he reimbursed the City. Still, the Court found that he had received “no assurances of privacy.”
Duke told his manager he was tired of becoming a bill collector. His manager then told Duke to request transcripts from Arch Wireless to determine whether the overages were due to personal or work-related messages. Even though Arch Wireless was found to have violated the SCA in a lower court ruling not addressed by the court, the employer (the City) did not violate the SCA in requesting or reviewing the transcripts.
Duke reviewed the messages and found that many were personal, and some were sexually explicit. He reported up the chain and an internal affairs investigation was opened into whether Quon was pursuing personal matters while on duty.
The internal affairs investigator (McMahon) designed a protocol to review the text messages. He used Quon’s work schedule and redacted Quon’s off-duty messages. He then reviewed the content of the messages. Quon was found to have violated department rules and disciplined. Quon, of course, sued, and the case found its way to the Supreme Court.
The Justices did not change the O’Connor (O’Connor v. Ortega, 480 U.S. 709 [1987]) standard to determine whether Quon had a reasonable expectation of privacy, because both briefs asserted that O’Connor controlled. For argument’s sake, the Justices assumed Quon had a reasonable expectation of privacy and then they analyzed whether the search was reasonable.
Even so, the court did go out of its way to enumerate factors to consider regarding expectations of privacy in the workplace:
1. Who has authority to change a Computer Policy and how should changes be announced.
2. Whether there are legitimate reasons to monitor (performance or team evaluations, litigation concerning the lawfulness of police actions and perhaps compliance with state open records laws).
3. The affordability of alternative forms of personal communications.
4. Whether the communications are “essential means or necessary instruments for self-expression and self-identification.”
5. Monitoring for appropriate use.
The Court set out criteria for justifying the search. Where there is a work-related purpose or in the case of an investigation of “work-related misconduct,” a government employer’s warrantless search is reasonable if it is “justified at its inception” and if “the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the circumstances giving rise to the search.”
The facts, as found by the jury, are that the City had a legitimate work-related rationale to determine whether employees were paying for work-related messages or the City was paying for extensive personal communications. The Court determined that Duke’s protocol was efficient, expedient and “not excessively intrusive.” Among the factors considered in the City’s favor:
1. Transcripts were requested for two, and not all, of the months of Quon’s overages.
2. The two-month period was reasonable.
3. McMahon redacted off-duty messages, reducing the intrusiveness of the review.
4. The search was “not nearly as intrusive as a search of his personal e-mail account or pager, or a wiretap on his home phone.…”
5. It was not necessary to find the “least intrusive” method (i.e., warning Quon not to use the pager for personal reasons, allowing Quon to count the messages himself and report, or redact personal messages himself, or to grant permission to read the redacted transcript).
Justice Scalia called this decision a “heavy-handed hint” for employer behavior (while noting it was a plurality opinion) and mocked the standard:
“Any rule that requires evaluating whether a given gadget is a ‘necessary instrumen[t] for self-expression, even self-identification,’ on top of assessing the degree to which ‘the law’s treatment of [workplace norms has] evolve[d],’ at 11, is (to put it mildly) unlikely to yield objective answers.”
Join me, Ralph Losey and Brett Anders, as we discuss this case and other hot cases, on July 13th at 1:00 P.M. EST, 10:00 A.M. PST. Register here.
Filed under Sound Evidence, Technology Counsel.