The U.S. Supreme Court recently heard oral arguments in the case City of Ontario, Ontario Police Department, and Lloyd Scharf v. Jeff Quon, et al.  According to the Workplace Privacy Data Management & Security Report by the legal firm of Jackson|Lewis, this case highlights the effects new technologies continue to have on workplace privacy issues. One issue the Court will consider is whether a California police department violated the privacy of one of its officers when it read the personal text messages on his department issued pager. The U.S. Court of Appeals for the Ninth Court sided with the police officer and ruled that users of text messaging services “have a reasonable expectation of privacy” regarding messages stored on the service provider’s network.

Police Sgt. Jeff Quon, his wife, his girlfriend, and another police sergeant filed the original suit after one of Quon’s superiors audited his messages and found that many of them were sexually explicit and personal.   Among the defendants were the City of Ontario, the Ontario Police Department, and Arch Wireless Operating. Co. Inc. Plaintiffs sought damages for alleged violation of their privacy rights.

Arch Wireless contracted with the employer, the City of Ontario, California, to provide text-messaging services using pagers. The City distributed the pagers to various employees. The employees signed an “Employee Acknowledgment” of the City’s general “Computer Usage, Internet, and E-mail Policy” which stated that the City reserved the right to “monitor and log all network activity including e-mail and Internet use, with or without notice,” and that “[u]sers should have no expectation of privacy or confidentiality when using these resources.” Quon also attended a meeting during which a police Lieutenant stated that pager messages “were considered e-mail, and that those messages would fall under the City’s policy as public information and eligible for auditing.” A certain number of characters each month were  allocated to each pager per month, Quon exceeded his allotment on several occasions. The Lieutenant attempted to determine whether the overages were business-related and obtained transcripts of text messages for the employees with overages. After auditing the transcripts provided by Arch Wireless the matter was referred to the City’s Internal Affairs agency, which determined that Quon exceeded his monthly character allotment and many of his messages were personal and not business-related.

The case went to trial and the jury ruled in favor of the employer. The plaintiffs appealed the ruling. The Court of Appeals ruled that the plaintiff  had a reasonable expectation of privacy in the text messages. The Court held that he did because the City:

• had a practice of not reviewing the messages if employees paid the overage charges, and
• did not review Quon’s messages even though he exceeded the character allotment several times.

Significantly, the author points out, the court held that the City’s practice trumped its own written policy, its employees’ acknowledgments that they had no privacy interest in electronic communications, and its statements in staff meetings that it viewed text messages as e-mail.

Among the issues the Supreme Court will look at in this case is whether the Department’s official “no-privacy” policy conflicts with its informal policy of allowing some personal use of pagers according to the blog. The blog says that this area of the law remains unsettled.

They recommend a well drafted policy to lower an employee’s expectation of privacy when using employer owned equipment. The law firms cites estimates that 100 million people will use text messages in 2010 and recommends that employers be ready with comprehensive computer and electronic equipment usage policies. Further, the firm says it is critical that:

• practices and policies are consistent,
• policies reflect current technologies,
• employees acknowledge receiving and reviewing policies and procedures, particularly when introducing new technologies.

While this case involves a public sector entity, its outcome is likely to affect electronic communications policies and practices across the country, whether by public or privacy employers.

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While I’m no lawyer, the biggest message out of this case and one out of New Jersey, which I noted earlier are policies need to be clear and consistent to be enforceable. In the New Jersey case, The court found the company’s policy on email use to be vague, noting it allows “occasional personal use.” The issue in the CA case seems to be the conflict between official policy and informal policy.

Some of the policy suggestions we make to clients include:

• Have senior management and legal counsel make policy
• Update the policy often
  
• Reduce expectation of privacy
  
• Distribute the policy to employees at regular intervals
  
• Specify who can change policy in the policy
  
• Train managers about the policy
  
• Specify that company equipment be used only for business communications
  
• Do not allow third-party emails.

Oh course don’t forget the example Kwame Kilpatrick