Scotus: Too Soon To Rule On Workplace Privacy

The U.S. Supreme Court yesterday announced its decision in City of Ontario California v. Quon. The Quon case involved a city police officer who was disciplined when the city obtained transcripts of his text messages sent on a department issued device. The city was conducting an audit to determine the extent of the officers’ personal use of text messaging while on duty. In the course of the audit, the city discovered that Quon had sent a number of personal, sexually explicit messages while on duty. The city disciplined Quon. He filed suit, contended that the city violated his Fourth Amendment rights. Because Quon was a government employee, the Fourth Amendment applied. A private employee wouldn’t have a Fourth Amendment claim in a similar circumstance. The case wound its way up the system. The Ninth Circuit found that Quon had a reasonable privacy expectation in the messages and that the city violated the Fourth Amendment by not considering less intrusive means to conduct the audit. The Supreme Court reversed the Ninth Circuit. Which was good news for the city. But the Supreme Court disappointed a lot of court watcher who expected the Court to delineate the limits of the privacy expectation in the workplace. The Court simply refused to go there. It expressly chose to exercise “caution” and not use the case to “establish far reaching premises that define the existence, and extent, of [workplace] privacy expectations.” The Court noted that “[a]t present, it is uncertain how workplace norms, and the law’s treatment of them, will evolve.” So the Court ruled on more narrow grounds. It assumed for the sake of argument that Quon had a privacy right. But it found that since the search concerned a legitimate workplace purpose and because it was not excessive, it was not unreasonable and did not violate the Fourth Amendment. Some observers think the Quon decision is an invitation for Congress to step in. We’ll see. For now, public employers would seem to be safe to search so long as they can come up with a work related reason. But it’s probably best for employers to adopt a policy that provides the rights deemed necessary and get the employee to sign off.