Vol. 25 No. 11- Employee E-Mails, Cell Phones & Text Messages – Search Reasonable

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Employee E-Mails, Cell Phones & Text Messages – Search Reasonable

June 18, 2010

The United States Supreme Court acted on June 17, 2010, to overturn the 2008 decision of the Ninth Circuit, U. S. Court of Appeals in the case of Quon v. Arch Wireless Operating Co.. In the case of City of Ontario v. Quon (June 17, 2010) 2010 U.S. Lexis 4972, the court ruled that government employers have the right to inspect employee text messages when reasonable.


Quon is a police officer for the City of Ontario and he, along with other officers, was issued a pager and allowed a quota of 25,000 test characters per month. The contract for service was with the Arch Wireless network. The department had a policy in place which alerted all employees that computers, e-mails and text messages were to be used for work only, and were subject to audit. However, the “operational reality” of the department was that officers were told by a lieutenant that audits would not be conducted and officers could send personal messages as long as they paid for any use exceeding the 25,000 characters per month.

When several officers, including Quon, continued to exceed the limit, the department decided to review the messages to determine if they were job related. The department said that, if they were job related, it would require increasing the number of messages officers were permitted to send each month. Therefore, the department asked Arch Wireless for copies of the transcripts and discovered that many of the messages were personal and/or sexual in nature, unrelated to work and, therefore, contrary to department policy.

Quon and others sued Arch, pursuant to the Stored Communications Act, for disclosing the transcripts, and sued the department for violating their Fourth Amendment rights under the U. S. Constitution and the Privacy Clause of the California Constitution.

The Ninth Circuit had held that Quon had a reasonable expectation of privacy and that the search of the text message records was unreasonable.


The Supreme Court, on a 9 to 0 vote, held that, even assuming that Quon had a reasonable expectation of privacy in his text messages, the search was reasonable.

“The Court assumes arguendo that: (1) Quon had a reasonable privacy expectation; (2) [the City’s] review of the transcript of text messages constituted a Fourth Amendment search; and (3) the principles applicable to a government employer’s search of an employees’ physical office apply as well to the electronic sphere.” However, in reaching this decision, the Court repeatedly emphasized that the City had a legitimate work-related interest in the examination of those text messages.

The focus of the analysis was on the reasonableness of the search in light of the legitimate interest of the City and its Chief of Police in “searching” the transcript of the text messages. In arriving at that conclusion, the Court noted that the City of Ontario had a policy in place informing employees that electronic media such as these messages were subject to audit and examination by the City.


It is absolutely imperative that employers adopt, and make known to all employees, a policy which makes clear to the employees that there is no reasonable expectation of privacy in the use of the employer’s equipment.

There should be clear policies regarding the use of the employer’s computers, the internet, cell phones, e-mail, text messaging devices, etc. which state that the employer reserves the right to monitor and log all network activity, with or without notice to the employee. It must be articulated that there is no confidentiality, on the part of the employee, when using the employer’s equipment.

Just as important as promulgating such policies is that they be enforced consistently and uniformly. Once an employer deviates from a stated policy, and allows an “informal” process to be established, the prohibitions or mandates set forth in the official policy are subject to challenge.

Additionally, it is most important that the employer ensure that its supervisors and managers understand that their allowing deviations from official policies may result in their undermining the purpose of those policies and, perhaps, render them meaningless.

Finally, any search of an employee or the employee’s office or media is an area where all employers should confer with knowledgeable legal counsel for advice and guidance in order to avoid problems before they occur.

If you wish to discuss this in greater detail, please feel free to contact either of us at (714) 446 – 1400 or by e-mail at prc@jones-mayer.com or mjm@jones-mayer.com

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