Do you use a company issued pager or cell phone for personal communications? Perhaps you send a text message to a spouse or significant other? If so, do you expect those communications to be private? If you do, you might be interested in what the U.S. Supreme Court had to say about the subject yesterday.
The case before them involved an officer, Sgt. Quon, a member of a California police department SWAT team who had been issued a department pager with texting capabilities. Although the department had been told up front not to expect privacy when using the equipment, they were also told that they could use them occasionally for personal use.
When employees exceeded their monthly allotment of allowed text messages the department would require them to pony up and pay the difference. The officer at the center of this case did exceed his limit repeatedly and after a while his supervisors got tired of chasing down the overage fees. They began to wonder whether the limit for text messages had been set too low. So the chief decided to audit the text message records and requested the text service to provide the necessary information.
When the department reviewed records for one month of Sgt. Quon’s on-duty texting activity they discovered 400 of his 456 on-duty texts were of a highly personal nature — sexually explicit messages sent to his wife and his mistress. Of course Sgt. Quon was confronted about the finding and the lawsuit that followed suggests the meeting didn’t go so well.
Sgt. Quon claimed the police department had violated his Fourth Amendment right against unreasonable search and seizure, among other things. It’s an interesting question that took numerous twists and turns as it went up the judicial ladder.
The federal trial court held that Sgt. Quon did have an expectation of privacy in his personal messages, but that the City’s actions were defensible because they were for a legitimate business purpose. The 9th Circuit Court of Appeals reversed the lower court. In their view the search may have been legitimate, but they thought the police chief should have used less intrusive means to determine usage rates. Finally, the U.S. Supreme Court reversed the 9th Circuit and agreed with the lower court.
It is a narrowly written opinion and some lawyers are reluctant to speculate about what the decision means for private sector employers and employees. Frankly, I don’t think it’s that difficult.
On the one hand is the question of whether the employer had a right to search their own equipment. Here the Court’s opinion makes clear that the search was justified because it was for a legitimate business reason. That’s the answer – it must be for a legitimate business reason – not nosing around for the fun of it. What is legitimate will depend on the facts of each case.
Granted the employer’s permission to allow “some” personal use could under some circumstances trigger an expectation of privacy. An example would be an employee having a privileged conversation with their attorney over their personal e-mail account but is being accessed from their office and transmitted through company servers.
But here, the number of text messages was directly related to the cost issue and cost, of course costs go to the heart of legitimate financial business interest.
Interestingly, none of the legal reports I’ve seen so far about this case tell us what happened to the wife and the mistress. Bet Sgt. Quon had some explaining to do. It would seem to me that if you want to keep the mistress thing quiet it’s not too smart to correspond with her using a communications device that you don’t own or control 100%.
What all this means for employees is crystal clear. If you really want to keep something private then don’t use business resources or assets to conduct your personal business. Keep it separate.
That’s why my number one rule for avoiding smoking gun documents is to always stick to company business when wearing your business hat or using business resources.
[Footnote: The case is City of Ontario, California v. Quon]