A Ninth Circuit decision recently overturned a favorable ruling for cities regarding employees' expectations of privacy. In the case of Quon v. Arch Wireless Operating Co., 529 F.3d 892 (9th Cir. 2008), a municipal employee was issued a pager and informed that he would be responsible for any charges beyond the monthly contract. The city had a general internet/email policy stating that employees using city-owned electronic equipment were limited to "city business," access would be periodically monitored and users had "no expectation of privacy." In addition the employee signed an acknowledgement which contained similar language.
The employee consistently used the pager to send text messages in excess of that allowed by the monthly contract. His supervisor told him that, as long as the employee paid for the overages, the city would not review his bill. Although the employee did pay the monthly overages, eventually the city became concerned with the significant amount of text messages the employee was sending and ultimately reviewed said messages.
The employee and the recipients of the messages sued the city, several employees/supervisors and the pager provider for violations of the California Constitution, the Fourth Amendment and the Stored Communications Act. Although the district court ruled in favor of the municipal defendants, the Ninth Circuit reversed that decision. Specifically, the appellate court suggested that the city should have asked the employee to obtain the messages, "redact personal messages and grant permission to the [employer] to review the redacted transcript."
One lesson to learn from this case is that even if an employer has policies (and signed acknowledgements) stating that employees should have no expectation of privacy, if the employers actual practice provides an expectation of privacy then the employer can be found liable. For more information see the July/August 2008 Municipal Lawyer.