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August 9, 2010

U.S. Supreme Court Upholds City’s Right to Review Text Messages

Filed under: General HR Buzz9:49 am

In City of Ontario v. Jeff Quon (June 17, 2010) the U.S. Supreme Court unanimously ruled that the City didn’t violate Fourth  Amendment protections against unreasonable searches when it reviewed an employee’s text messages sent on a city provided pager.  While this decision applies to public sector employers the case provides useful guidance to all employers.

The City of Ontario Police Department had issued pagers to SWAT team members and paid a monthly fee for their use, which included a 25,000 character limit.  City policy provided that it reserved the right to monitor communication activity, warned that employees should have no expectations of privacy in these communications, that all communications using city equipment are city property, that such resources should not be used for personal reasons, and also banned obscene, harassing, or inappropriate communications.   Quon exceeded the limit multiple times (chatting with his wife and mistress using sexually explicit language) and paid the over limit charges.  When an increasing number of officers were regularly exceeding their pager limits, an audit of messages sent during work hours was undertaken.  Quon was disciplined and he sued.

The Court found that even if Quon had a reasonable expectation of privacy, the City didn’t violate the Fourth Amendment.  It found that the search was reasonable as the City had undertaken the audit to determine if the pager program was sufficient and if the overages resulted from personal or job related messages during work time. Additionally, the search wasn’t excessively intrusive as only several months of work time messages were reviewed.

The Bottom Line:   The case underscores the need for solid and well-communicated policies regarding emails, texting, cell phones, and other electronic communications.  Additionally, it’s important to be able to demonstrate that any searches be work related and limited in scope.


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