Public officials who believe that their policies allow them to access public employees' electronic communications may need to think again.

The City of Ontario, Calif., violated a police sergeant's Fourth Amendment and privacy rights when it reviewed text messages sent and received on his police department pager, many of which were personal, sexually explicit and exchanged while he was on duty. So ruled the U.S. Court of Appeals for the Ninth Circuit in Quon v. Arch Wireless Operating Co. The court found that the sergeant had a reasonable expectation of privacy in the content of text messages on his pager, even though the city's policy on electronic communications limited usage of the city's computer and related systems to city business and gave the city the right to monitor such communications.

The policy did not specifically address pager use and, although the police department had announced that it applied to pagers, supervisors followed an informal policy signaling otherwise. Officers had an allotted number of text characters on their pagers. When they exceeded that number, they could simply pay for the overage. Only if the officers declined to do so would the city audit their text messages for content not related to work, so it could then charge them accordingly. The sergeant had always paid for his overage. In these circumstances, the court found, the sergeant had a reasonable expectation of privacy in the messages. According to the court, by reviewing all of the sergeant's messages, both work-related and personal, to determine whether more text capacity was needed, the city's search was not reasonable in scope under the Fourth Amendment.

Ballard Spahr's Labor and Employment Group can assist employers in drafting, revising and implementing policies on electronic communications.


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