Recently, the Supremes agreed to hear a case that will permit it to provide guidance to employers about their right to monitor its employees' electronic communications, at least in the public employer context. The Supremes will review a Ninth Circuit finding that a city police officer had a reasonable expectation of privacy in personal text messages that were sent from his city-issued pager.
Like most employers, the City had a written electronics communications policy that expressly prohibited personal use of its computers and notified employees that they had no expectation of privacy with respect to any communications using the city's computer systems. The City's policy, however, did not make clear that this policy applied to its police officers' pagers or to text messaging. Instead, the city informally permitted the use of pagers for personal reasons. After reviewing transcripts of messages, the city was shocked, shocked to learn the pagers were used for personal purposes. Upon learning that their texts had been reviewed, Sergeant Quon sued the city under the Fourth Amendment and the Stored Communications Act.
The Ninth Circuit's decision seems contrary to the general trend permitting employers to monitor employees' emails on employer computers once they put employees on such notice. But the City's electronics communications policy did not explicitly address text messages. Then, the City permitted an informal practice to develop. By not updating its electronics communications policy and by permitting informal practices to develop, the City let the horses out the barn door.
This case seems pretty straightforward under present law--the City should have revisited its policies. Quon is likely going to get a Phyrric victory here. So why grant cert.? Maybe to provide a clue to provide guidance in this context. Federal district courts continue to reach conflicting results when addressing whether employees waive the attorney-client privilege by communicating with a personal attorney using their employer’s electronic resources. The upshot is that with yet another federal court recently finding no waiver, employers should revisit and revise their electronic resources policies to increase their chances of winning the waiver battle.
Again, as I stated recently, it's important for employers to have workplace policies in place before a problem develops, and to follow those policies consistently.
Convertino v. United States DOJ, 2009 U.S. Dist. LEXIS 115050 (D.C. Dec. 10, 2009)
Alamar Ranch, LLC v. County of Boise, 2009 U.S. Dist. LEXIS 101866 (D. Idaho Nov. 2, 2009)
Quon v. Arch Wireless Operating Company, Quon v. Arch Wireless Operating Company, Inc., Ninth Circuit, No. 07-55282 (2009)
