Employers and Electronic Communication

In the January/February 2009 issue of the Municipal Lawyer, Joshua K. Leader and Caroline C. Marino wrote an interesting article on "Municipalities and Employee Electronic Communications."

A primary case study set forth in the article is Quon v. Arch Wireless Operating Co., Inc., which involved a city police department that contracted for wireless text-messaging services for two-way pagers, which were distributed to employees. An employee, Quan, repeatedly went over the monthly text limit for his pager, which caused overages. The police department assumed that the overcharges were a result of him using the pager for personal messages. The department had suggested that their policy of banning personal use of department owed computers applied to the pagers but there was no official rule. Instead the employees who had the overages were to pay the amount that exceeded their limit. Eventually the department obtained transcripts of Quan’s texts and to find the real cause of the overages and discovered they were a result of sending personal messages. Quan then sued the police department, alleging his fourth amendment right to privacy was violated.

The U.S. Court of Appeals for the Ninth Circuit ruled Quan had a reasonable expectation of privacy in his texts because of the police department’s informal policy of letting employees pay for the overages. They also determined that the department should not have been allowed to obtain the transcripts from the service provider because the federal Stored Communications Act only allows the sender and addressee of the messages to view their content, regardless of who pays the bill.

The Quan case--and Mr. Leader's and Ms. Marino's article--should serve as a warning for both public and private employees. While an employer may need to monitor its employees for many reasons, it must be aware of the potential constitutional implications when doing so. Monitoring employee electronic correspondence could amount to an unlawful government search and seizure if the employees have a reasonable expectation of privacy in that correspondence. Employers that do wish to monitor their employees should adopt a ban on personal employer-issued devices and make clear that these devices are subject to monitoring.