The United States Supreme Court is expected to rule on the issue of privacy with regard to text messages sent and received by employees on employer-issued equipment. In Quon v. Arch Wireless Operating Co., Inc., the employees of the Ontario Police Department were issued alphanumeric pagers for work-related purposes and limited personal use. The City of Ontario had a written “Computer Usage, Internet and E-mail Policy,” which provided that employees should not expect privacy in their communications utilizing the identified equipment provided by the City. However, the policy did not specifically address the use and privacy of text messages sent via the alphanumeric pagers.

The trial court concluded that the employees had a reasonable expectation of privacy in the text messages, but asked the jury to determine whether the City’s conduct in reviewing the text messages was reasonable. The jury answered in the affirmative, concluding that the review procedure used by the City was reasonable.

The federal appellate court, however, reversed the trial court in part, stating that the review of the text messages by the City of Ontario was unreasonable as it was excessively intrusive and a violation of both the California Constitution and the Fourth Amendment of the U.S. Constitution.

While it is certain that the Supreme Court’s decision will at a minimum apply to public sector employers, it will be interesting to see if the Court also extends its ruling to those employers in the private sector. In any event, this case serves as a reminder to all employers of the importance of having updated policies that clearly apply to the ever-evolving array of technological devices they provide to their employees.

Allen & Gooch is providing this legal update for informational purposes only. This article should not be construed as legal advice or a legal opinion as to any specific facts or circumstances. You should consult your own attorney concerning your particular situation and any specific legal questions you may have.