Court Recognizes Privacy Expectation in Text Message Contents

"Court Recognizes Privacy Expectation in Text Message Contents"
by Steven Ellis
Metropolitan News-Enterprise
June 19, 2008

http://www.metnews.com/articles/2008/quon061908.htm

This article discusses a court decision on whether or not it was a violation of privacy to access an employee's actual text messages.

Employees of the Ontario, California Police Department were issued pagers by the City. They were asked to sign off on the City's general policy related to internet and computer use. Among other things, the policy advised employees that they had no expectation of privacy with regards to computer usage. The policy did not specifically address pagers, so an informal policy was created which said that if the monthly 25,000 character limit was exceeded, the City must be reimbursed for the overage charges or the messages would be audited to see if they were personal or business related.

One officer, Jeff Quon, exceeded the limits on several occasions, leading to complaints from his lieutenant about having to collect the overage charges. The chief's response was to request the contents of the Quon's texts to verify if they were business related and to increase the character limit on his account if warranted. In fact many of the texts were personal, some even sexually explicit. When Quon found out that his texts had been audited, he filed a lawsuit alleging violation of his 4th amendment rights.

The court found for Quon, stating that he had a reasonable expectation of privacy according to the details of the department's informal policy. As long as he paid the overages, his messages would not be reviewed. The court felt that he could have been warned that if he did not stop going over his limit his messages would be reviewed.

As a Mesa employee, I am required to sign the computer usage policy every year with my review. The policy is very detailed, and it clearly outlines the violations and their related consequences. The City wants to make sure that no employee can say they were not aware of the policy if they are caught violating it. This article highlights the need for policies to be reviewed and updated as needed to keep up with changing technology use in the workplace.

As for the review of Quon's text messages, it seems that the chief did not have any qualms about accessing an employee's private information. He did not even consider that the informal department policy made his actions a violation of Quon's 4th amendment rights. As public administrators, we need to be aware of these laws so we don't make the same mistake.

Additional information:

An article posted by Sherman & Howard LLC gives more detail on this decision.

"Employer's Review of Employee's Text Messages is an Illegal Search"
by Sherman & Howard LLC
September 8, 2008

http://www.shermanhoward.com/NewsAndEvents/View/252D6045-5056-965B-E8A6094648148C6F/