Supreme Court case to consider limits on workplace privacy
The Supreme Court last week agreed to hear arguments in a case on employee privacy and the extent to which government agencies can monitor the content of personal communications made by their employees while using government-owned equipment. The case involves a police sergeant on the city of Ontario, California SWAT team who routinely used his city-issued pager to send and receive personal messages, many of which were found to be sexual in nature. The case (Quon v. Arch Wireless) is only partly about the appropriateness of the content, or the fact that most of the pager usage by the individual in question was personal, rather than business-oriented. The central issue is whether the city violated a Constitutional right to privacy (under an interpretation of the Fourth Amendment’s protection against unreasonable search) by inspecting the content of the text messages sent by the sergeant. The conclusion of the Ninth Circuit Court of Appeals was that the city did in fact violate the sergeant’s privacy, so it is the city that appealed the decision to the Supreme Court. While the issues at the heart of the case are the subject of considerable disagreement by legal theorists and privacy advocates, the particularities of this specific case may present the Court with an opportunity to settle the dispute without establishing a broad or significant precedent about privacy in the workplace.
In the United States, the general rule is that employees have almost no right to privacy in the workplace when using employee-owned equipment such as phones, computers, and other communications devices, as long as employees have been notified by their employer that monitoring of their communications is taking place. (The situation is drastically different in the European Community and other foreign locations, but of course the Supreme Court’s jurisdiction does not extend beyond the U.S.) There are distinctions in U.S. law regarding whether the monitoring constitutes “interception” — such as listening in on calls or inspecting email in transit — in which case the U.S. Wiretap Act (for telephone calls) and the Electronic Communications Privacy Act (for electronic communication such as email) generally prohibits monitoring. Both of these laws contain exceptions for situations where monitoring is for ordinary business use and when prior consent to monitoring has been given by employees. In the Ontario case, the police department had a formal policy in place asserting a right to monitor electronic communications by employees, and employees were told explicitly that they had no expectation of privacy. That might have been the end of the story had not a somewhat contradictory informal policy been adopted by the SWAT commander to whom the sergeant reported, under which officers were told that if they paid for pager usage in excess of a 25,000 character monthly limit, their messages would not be inspected. Legal counsel for the sergeant argued, and the Ninth Circuit panel agreed, that the informal policy overrode the official one, and therefore the sergeant’s Fourth Amendment rights had been violated under the provisions of the Stored Communications Act (18 USC 121 §§2701-2711). While the larger issue at stake is the extent to which government employees can expect their workplace communication to remain privacy, the Court may choose not to weigh in on this as part of this case. Their consideration is also likely to be limited to workplace privacy for government employees, although most of the relevant privacy laws also apply to private sector organizations.
Leaving aside for the moment the lascivious nature of the sergeant’s personal communications (which would violate the acceptable use policies of many private and public sector organizations), the Supreme Court may choose not to make a legal interpretation on employee privacy in the workplace because the law in that area is already clear. The situation may have been more likely to come up in a government setting, given that not all private sector organizations have the same rules or practices involving stored communications and saving electronic messages that make the review of the sergeant’s text messages possible. Employers have been fairly consistent in asserting their rights to monitor employee usage of employer property, but it is also common practice to allow occasional or incidental personal use of employer property, which makes it hard to draw a legal line between what constitutes appropriate use and what is too much. The content of the messages in this case make the conduct seems more egregiously inappropriate, but the Ninth Circuit panel at least thought it was unfair for the Ontario Police Department to tell its employees their communications wouldn’t be inspected and then change its mind. In this context the take-away from this case may be less a reinterpretation of employee privacy rights in the workplace than a reinforcement of the need for employers to create, make employees aware of, and follow explicit acceptable use and privacy policies.