In the modern world it is easy to slip into writing private emails, texts or other communications and expect that that what you write in confidence will remain confidential. After all, employees should and do have a reasonable expectation of privacy, correct? However, an employee should remember that – especially when you are using an employer-owned cell phone, computer or other devise – this right to privacy can be rather illusory.
In City of Ontario v Quon, 130 S. Ct. 2619 (2010), the United States Supreme Court (analyzing rights under the Fourth Amendment) approved of the City of Ontario’s search of employees’ text messages (including some sexually explicit messages) sent on city-issued cell phones, where city policy permitted monitoring of city cell phones. This was true even though City supervisors gave mixed messages about whether the City would monitor text messages.
Although this case really focused on U.S. constitutional standards, rather than the State of California’s constitutional right to privacy, this case should remind employees that they really should be wary of using employer-issued computers, cell phones or other devises for any personal communications. The courts are generally moving more and more towards finding that rights to privacy may give way to employer’s rights to monitor their employees and their equipment. This is especially true if the employer has a known policy permitting search of the devices or explicitly providing that the employer may or will monitor the devices (leading courts to conclude that the right to privacy is not so reasonable under these circumstances).
Employees may end up facing discipline, termination or damaging evidence in a lawsuit. In other words, Quon is one of a line of cases limiting your hard-won right to privacy, so be careful what you say, who you say it to, when you say it, and by what method you communicate!
Siegel & LeWitter