Quon and Electronic Fourth Amendment Privacy

By Sherry F. Colb

In my column for this week, I discuss the recent case of Ontario v. Quon, in which the U.S. Supreme Court rejected a public employee's claim that the government had violated his Fourth Amendment right against unreasonable searches and seizures when it examined his personal text messages, sent and received on an employer-issued pager.  In the column, I criticize the majority, not for the outcome in the particular case, but for expressing a general reluctance to address employee privacy questions in the electronic context.

In this post, I want to focus on a different aspect of the case -- the significance of the fact that an employer has provided a pager or an email account, in assessing the employee's reasonable expectation of privacy in his communications.

At first blush, the employer's having issued the pager might seem very important.  Presumably, the employer's goal in providing the device is to facilitate work, not to provide a vehicle for engaging in non-work-related communication.  Thus an employee is not really supposed to be using the pager for personal communication at all and accordingly can be said to lack a reasonable expectation of privacy in pager-communications in the same way that a person breaking into another person's house lacks a reasonable expectation of privacy in that house (and cannot complain of a Fourth Amendment violation when police come into the house without probable cause or a warrant and find him sitting in the living room without his clothes on).

Yet demanding privacy in such circumstances feels different from expecting privacy in one's text messages on an employer's pager.  Perhaps this has something to do with customary practice.  It is not customary in law-abiding circles to break into people's houses and take off one's clothes.  Behaving in this way thus appears to give rise to no legitimate privacy interest.
Sending personal texts on a pager, by contrast, seems generally expected when a person possesses a pager (or a blackberry or another such communications device).  An employer could be rightly upset if an employee spent hours exchanging texts with his girlfriend when he should have been working, but this has less to do with the use of the device than it does with the fact that the employee is not doing his job.  For this reason, if the employee uses the device for personal reasons only occasionally (e.g., to ask his wife how her visit to the obstetrician went or to tell his son that his first chemotherapy treatment was awful), few would fault the employee for this conduct, and an employer would appear to be abusing her authority by reading transcripts of these texts.

Much therefore depends on social custom and expectations.  Though the pager or computer belongs to the employer, and if there may even be an official "we could read your emails and texts" policy at the office, many people would nonetheless perceive an employer who reads employees' communications to be an abusive and intrusive employer who indeed does violate her employees' privacy.

The Court in Quon specifically rejected the idea that the Fourth Amendment requires an employer to invade no more privacy than necessary to accomplish her legitimate aims.  Yet such an approach would do far better at protecting privacy in the workplace, and it would seem be difficult to defend as "reasonable" an invasion of privacy to accomplish a goal that could be as easily accomplished without the invasion.

If an employer wishes to find out whether and how many of an employees' texts are of a personal nature, for example, (given a policy against using a pager for personal purposes), a simple approach would be to ask the service provider (1) to reveal to the employer how many characters were sent and received in total to and from the pager in question, and (2) to send a transcript of the messages to the employee, who would then be free to cross out in opaque ink everything personal.  The employer could then read the remaining, work-related texts and subtract their length from the total length of the texts sent and received.  If the disparity were excessive (by whatever measure the employer applies), discipline might be appropriate.  And this could all be easily accomplished without any need to expose the personal, private thoughts of the employee.

To give the proper weight to the privacy interests at issue in electronic communications requires that we attend to the relation between the invasion itself and the goal of that invasion.  If an employer must determine something specific about the content of a text message (e.g., whether the employee perpetrated an offense by virtue of what he said in a text, or whether the employee committed the company to some course of conduct in a text), then it may -- in the presence of objective suspicion -- be reasonable for the employer to read the text.  If the matter being investigated, however, is simply whether communications are work-related or not, there are less restrictive ways of learning this information without exposing the private messages of the employee.  One can hope that in a case with more sympathetic facts than Quon, the Supreme Court will consider performing something beyond its typically toothless "rational basis scrutiny" to government employer measures that expose the personal electronic communications of its employees.