City of Ontario v. Quon: electronic privacy in the workplace.

• Author: Harding, Jacqueline J.
• Position: Conning the IADC Newsletters

This article originally appeared in the November 2010 Employment Law Committee Newsletter.

On June 17, 2010, the United States Supreme Court issued a highly anticipated decision in City of Ontario, California, et al. v. Quon. (1) The case had the potential to create broad new privacy rights for public sector employees when using employer provided electronic devices, such as cell phones and pagers. Instead, the court held that the City of Ontario's ("City") search of two-way pager transcript was reasonable, and therefore the heightened privacy rights afforded to government employees in some instances was not protected communication under these given facts.

BACKGROUND

In 2001, the City of Ontario Police Department ("Department") issued members of the SWAT team two-way pagers in an effort to assist the team to mobilize and respond to emergencies. The City had a contract with Arch Wireless Operating Company ("ARCH"), which was also a party to the litigation, to provide wireless services for the pagers. The City's Computer Usage Policy ("policy") applied to text messages sent via pagers and the Department specifically put employees on notice that they should have no expectation of privacy or confidentiality.

The City's policy specified that the City reserved the right "to monitor and log all network activity, including email and Internet use, with or without notice. Users should have no expectation of privacy when using these resources." Officer Jeff Quon signed a statement acknowledging that he had read and understood the policy. The policy did not apply specifically to the monitoring of pagers issued by the City. Even though the written policy did not list pagers as a technological device covered by the policy, the City made clear to its employees that it would treat text messages from pagers the same way it treated the City's emails. This understanding was communicated orally to City employees, including police officers. The application of the policy to text messages was also reiterated in a written summary of meetings at which officials articulated the City's position.

Unlike an email message (sent on the City's own computer system), text messages were transmitted on the pagers through an independent carrier Arch Wireless ("Arch"). Arch electronically stored a copy of each text message sent.

The City imposed a maximum text message usage on its employees. Quon and the other officers exceeded the monthly text message usage limit on numerous...