ELA Update: Supreme Court rules employers may review workers’ text messages
Published: June 22, 2010
In a decision with implications for school districts and county offices of education, the U.S. Supreme Court has ruled that a city employer’s review of the personal text messages sent by a police officer on his employer-owned pager was constitutional and did not violate the employee’s right to privacy. The Supreme Court’s decision in the case, City of Ontario v. Quon, overturns a controversial 2008 decision by the 9th Circuit Court of Appeals.
CSBA’s Education Legal Alliance, which joined in the amicus brief filed in the Supreme Court by the National School Boards Association, requested that the court issue a broad ruling that public employees do not have a reasonable expectation of privacy in their electronic communications on district-owned equipment. Although the court took a more conservative approach than NSBA and CSBA had urged, CSBA Associate General Counsel Judy Cias said the case does underscore the importance of maintaining written policies that give employees clear notice that district and county office employers may monitor all communications made using school-owned equipment or sent over district and county office networks or systems.
Background
The case involved an employer review of personal messages sent by a police officer on a city-owned and issued pager—some of which were sexually explicit. The city audited the employee’s messages after he repeatedly exceeded the monthly limit on text characters.
The public employer in this case had a written policy governing the use of computers and related equipment, including e-mails, that reserved the right to monitor employees’ use with or without notice and stated that employees had no expectation of privacy or confidentiality in using those resources. Although the computer policy did not explicitly apply to pagers (since the messages were not transmitted via the city network), the city made it clear during staff meetings that the text messages would be treated the same as e-mails and would be subject to auditing. However, the officer’s supervisor assured him that he would not audit the messages as long as the offending officer reimbursed the city for overage charges.
The 9th Circuit held that the officer had a reasonable expectation of privacy because of the “operational reality of the workplace.” Although the city had a written monitoring policy, the supervisor in this case had chosen not to enforce it. The 9th Circuit held that the city's search was unreasonable because there were less intrusive means to obtain the information.
In its reversal, the Supreme Court assumed that, for purposes of this decision, the officer had a reasonable expectation of privacy, but held that the search was lawful because it was a reasonable way to determine if the overages were the result of work-related messaging or personal use.
Implications for school districts
Because the law in this area is still evolving, district and county office employers should proceed cautiously before conducting a search or inspection of an employee’s communication devices or messages. Employers must ensure that they have identified a legitimate, work-related purpose for the search and have tailored the search or inspection to that purpose.
In addition to establishing clear policies on employers’ rights to review employee communications on district or county office equipment and networks, employers need to be clear that the rules will be enforced.
“Districts should also make sure that supervisors and managers communicate this policy consistently,” Cias said. “This is important since an issue in this case was the fact that the supervisor had told employees that the policy would not be enforced.”
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