U.S. Supreme Court: No sexting at work

From The Prange County Register of June 18th, 2010; posted by

he U.S. Supreme Court’s ruling Thursday in a Southern California case should put employees and employers on notice: no sexting on company-supplied equipment and during work hours. Below is a good explanation of the case and how it affects workers in private companies, even though the case involved the City of Ontario.

The authors are Jeffrey Wertheimer, a partner in the Employment and Labor Department of Rutan & Tucker, LLP in Costa Mesa, and Brandon Sylvia, an associate in the same department.

“The issue of electronic workplace privacy made its way to the United States Supreme Court, which Thursday released its ruling in City of Ontario v. Quon, a case involving an employer’s monitoring of employee text messages sent via employer-issued equipment.

“In Quon, the Court ruled that the city’s search of a peace officer’s text messages sent on a city-owned pager was reasonable because “the search was motivated by a legitimate work-related purpose,” and it was not excessive in scope.

“In Quon, the City of Ontario provided certain employees with pagers that could be used for sending text messages, and paid the associated wireless service fees.  The wireless plan included a 25,000 character per-month limit, after which overage charges were assessed.  Quon, a police sergeant and SWAT team member, received one such pager.

“Quon’s problems began when he exceeded the city’s monthly text messages limit for a few months.  Each time, he personally paid the overage charges that were assessed by the wireless service provider, and no further action was taken by the city.

“After a while, however, Quon’s lieutenant got tired of being a bill collector, and decided to order transcripts of the text messages “for auditing.”  This audit was supposed to serve two related purposes:

  1. to see whether the city’s character limit needed to be extended
  2. to see whether Quon was wasting time texting when he should have been working.

“From the audit, the city learned the reason behind Quon’s inability to stay within the character limitation:  In addition to his work-related texts, he was also sending sexually explicit texts to not one, but two women.  One was his wife, another Ontario police officer; the other was his mistress, who worked as a dispatcher for the city.

As a result, the city exposed Quon’s intra-workplace, extramarital affair, and Quon, his wife, and his paramour all sued the City of Ontario in federal court, asserting that their privacy rights were violated by the city’s inspection of the text messages.

“In general, in order for an individual to successfully demonstrate that their constitutional right to privacy has been violated, they must establish three elements.

The person must identify a specific, legally-protected privacy interest.  In other words, a plaintiff must show that they had an expectation

  1. of a right to privacy under the circumstances.
  2. The court must determine that that expectation was reasonable – again, considering all relevant facts, circumstances, and customs.
  3. The court inquires into the seriousness of the invasion of privacy – specifically, whether it was of a “nature, scope, and actual or potential impact [as] to constitute an egregious breach of the social norms.”

“Thus, not every invasion of privacy is actionable; instead, only those that are unreasonable under the circumstances give rise to a cause of action.  This inquiry is sometimes expressed as a two-part test:  whether there is a reasonable expectation of privacy, and whether it was unreasonably intruded upon.

“In Quon, the Supreme Court did not address the issue of whether Quon had a reasonable expectation of privacy in his texts, it simply assumed that he had such an expectation.  Rather, the Supreme Court focused on the reasonableness of the city’s search of his text messages and ruled that the city’s search was reasonable.

“The court ruled that as a police officer and SWAT team member, Quon should have realized that it might have been necessary to audit his messages for performance reasons, or as a result of a lawsuit arising out of his on-duty actions.  While Quon might have had an expectation of privacy, the court ruled, he could not have a reasonable expectation that his texts were immune from scrutiny.

“In the second part of its analysis, the court ruled that the city’s review of Quon’s text messages constituted a “reasonable” search.  The court noted that the city’s review was limited to only two months worth of texts, and the city only reviewed texts sent while Quon was on duty.

“Finally, and perhaps most importantly for employers, the court concluded that the search would have been “reasonable and normal in the private-employer context.”  Thus, while the court earlier indicated a willingness to confine this case to its facts, it specifically broadened the scope of its ruling by expanding the facts and holding of Quon to the private sector.

“For employers, there are several key lessons to be learned from Quon.

“First, the court repeatedly referenced the city’s “Computer Usage, Internet and E-Mail Policy,” which clearly indicated that all e-mail and network activity was subject to monitoring without notice.  Although this policy did not specifically apply to text messages, at a subsequent meeting the city made it clear to Quon and others that texts were considered e-mails, and thus fall under the same policy.

“The importance of an Internet usage policy that is both specific and flexible cannot be overstated.  The policy should make clear that all communications undertaken on company time and company equipment are subject to being monitored.  The policy must also be flexible enough to apply to all forms of ever-changing technology, from computers to cell phones, and from texts to tweets.

“Second, any monitoring undertaken by employers should be conducted with a minimum of invasiveness.  Simply monitoring an employee’s on-duty e-mails or texts may be considered reasonable, but entering a private chat room or monitoring an employee’s off duty private texts is an entirely different, and riskier, endeavor.

“For employees, the lesson is more basic – always assume that your boss can and will monitor all communications sent from a company device – computer, pager, or cell phone.  As the Supreme Court noted, cell phones are now sufficiently ubiquitous and inexpensive that those needing assurances of privacy may be better off purchasing their own devices for personal matters. ”

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