A Historical Application of the Fourth Amendment in our Information Age

The Background
The personal use of company – issued hand-held digital devices like BlackBerries and smart phones is wide-spread. Companies and government agencies understand, for the most part, that employees will use those devices for personal use to some degree. Most organizations advise their employees that they have no expectation of privacy if they use these company devices for personal communications, but those same employers generally do not monitor their employees personal use of those devices in the workplace.

Sounds like common sense? No so, says Jeff Quon, a police officer in Ontario California. The Ontario Police Department routinely issued texting pagers to members of their department and had a formal policy which indicated officers the department had the right to review messages on those devices. The department also had an “unofficial” policy which allowed officers to use their texting devices for personal use if they paid a portion of the monthly bill. Officer Quon, a SWAT team member of the department was embarrassed when some of his sexually explicit text messages were reviewed by senior members of the police department. Quon’s boss, a lieutenant on the department, had ordered a review of Quon’s messages when he discovered only 57 of more than 450 of Quon’s messages during one month in 2002 were related to police department business.

The Allegations
Officer Quon and some of the individuals with whom he messaged sued the Ontario California Police Department, claiming their constitutional right to privacy was violated when the department reviewed and disclosed their private messages.

The Result
The officer won his case. The United States Court of Appeals for the Ninth Circuit in San Francisco ruled that the department’s “formal” policy was essentially overruled by the department’s informal internal understanding that officers could use their texting pagers for personal communications as long as they paid for a portion of the bill.

The City of Ontario is appealing to the United States Supreme Court, and the Justices will hear the case this year.

“This case opens a new frontier in Fourth Amendment jurisprudence”

– A three judge panel from the appeals court.

The Take-Aways
Although this case specifically involves text messaging, there is ample concern that a Supreme Court decision could be applied to a widearray of internet privacy and electronic communications issues in the workplace. Here are a few ways to get ahead of this issue.

  1. Follow this case closely: City of Ontario v. Quon, No. 08-1332. The ramifications could impact your internal company policies and associated risks and liabilities. You may need to shift your policies…depending on how this case plays out.
  2. Get ready: Review your current policies related to the Internet, personal use of company-issued electronic communication devices, and privacy expectations and make sure they are meeting your business needs and consistent with laws and norms. Are their variances between your company’s formal policies and the informal practices accepted by company management?
  3. Training and Notification: Your company policies should be well-documented and a part of your new employee orientation and ongoing employee training programs. For example, do you use a notification “banner” advising employees of your no expectation of privacy policy on company – issued computers and portable devices that is displayed when employees log – into work computers and networks?
  4. Remember: Text messaging and portable E-mailing devices are rich sources of Electronically Stored Information (ESI). The volume of this type of ESI is growing fast as the use of these devices explodes. In addition, the fast and casual nature of these messages often results in the creation of electronic messages that can contain very valuable information that can impact your case in a dramatic fashion. Attorneys can not neglect this source during investigations or discovery.