RETURN OF THE TEXT POLICE? QUON TO BE HEARD BY THE U.S. SUPREME COURT; AT STAKE, EMPLOYER MONITORING OF EMPLOYEE TEXTS AND EMAILS

NOTE FROM THE EDITOR:  We reported on the Quon v. Arch Wireless case many moons ago (see here for our summary).  In that opinion, the Ninth Circuit held that -- in the case before it -- the employee police officers had a reasonable expectation of privacy in the text messages they sent and received on their employer-provided PDAs. 

The media had a field day, proclaiming the end of employer monitoring of employee electronic communications.  However, as we explained in our summary, the case didn't go that far.  It was limited to situations where the electronic communication did not reside on the employer servers(contrary to the practice of most company email systems), and where there was an informal policy that the employer would not monitor the communications (contrary to most employers' express policy permitting monitoring).

Guess what?  This may not be the end of the story.  According to Alston & Bird employment and privacy specialist Jesse Jauregui, today the U.S. Supreme Court has just picked up the case for review (under the caption City of Ontario, California v. Jeff Quon, et al.).  See here.

Based on how the Ninth Circuit usually gets treated by the U.S. Supremes, anyone want to bet how this one will come out?

Here's Jesse's take on the Supreme Court's action:

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Here is the Supreme Court's statement of the questions presented:

While individuals do not lose Fourth Amendment rights merely because they work for the government, some expectations of privacy held by government employees may be unreasonable due to the "operational realities of the workplace."  O'Connor v. Ortega, 480 U.S. 709, 717 (1987) (plurality).  Even if there exists a reasonable expectation of privacy, a warrantless search by a government employer - for noninvestigatory work-related purposes or for investigations of work-related misconduct - is permissible if reasonable under the circumstances.  Id. at 725-26 (plurality).  The questions presented are:

1. Whether a SWAT team member has a reasonable expectation of privacy in text messages transmitted on his SWAT pager, where the police department has an official no-privacy policy but a non-policymaking lieutenant announced an informal policy of allowing some personal use of the pagers.

2. Whether the Ninth Circuit contravened this Court's Fourth Amendment precedents and created a circuit conflict by analyzing whether the police department could have used "less intrusive methods" of reviewing text messages transmitted by a SWAT team member on his SWAT pager.

3. Whether individuals who send text messages to a SWAT team member's SWAT pager have a reasonable expectation that their messages will be free from review by the recipient's government employer. 

Courts have traditionally given Employers wide latitude in their ability to review content generated or received by employees on any company owned device such as a computer.

Potentially at stake in this case is whether the Supreme Court will re-define the boundaries of the right to privacy, and more specifically of an employee's electronic privacy rights in hand-held devices provided by employers and used primarily for workplace purposes.  What is a reasonable expectation of Privacy under these circumstances?

The case implicates the rights and interests of three main groups, 1) Employers, 2) Employee "end users", and 3) ISP and Wireless Carriers.  Here are the key issues that will likely be implicated by the Court's review:

Employers: 

• Will the right to control employer-issued devices be limited even though the device is issued by the Employer primarily for work purposes? 
• Will the Employer maintain the right to review content so long as it has an explicit formal policy that clearly spells out the right to review and is strictly followed? 
• Will the rules be different for public and private employers?

End Users/Employees: 

• Will the court expand the expectation of privacy for employees or will it issue a more tailored opinion focusing on the facts in Quon? 
• Will the fact that an informal practice arose in the Police Department, which created the alleged expectation of privacy, be the determining factor? 
• Will the court rule more broadly and reaffirm an employer's right to control its electronic workspace, or will it rule that an employer will need an employee's consent in order to retrieve text message data?

ISP's and Wireless Carriers: 

• Will the Court reinterpret The Stored Communications Act, or will it continue to hew to the distinction between "Remote Computing Service" providers (RCS) and" Electronic Communications Services" providers (ECS)? 
• What requirements for end user consent should ISP's and Carriers require for release of information to employers? 
• How will the court analyze the issues in light of the fact that technology is rapidly changing and the distinctions made in the Electronic Communication Privacy Act back in 1986, may no longer apply?
• Will it matter if the information was on e-mail as opposed to text messages?
• Will there be a different set of rules for third party networks as opposed to an employer owned/operated network?

Stay tuned ....