Sex text

Risk & Insurance, Oct 15, 2008 by Philip G. Kircher

Let me see if I have this right. You use an employer-provided text messaging service to send sexually explicit messages totally unrelated to work. Your employer then catches you. You're toast, right? Wrong, according to a recent federal circuit court of appeals ruling (Quon v. Arch Wireless), that states your employer violated your constitutional right to privacy.

Sergeant Quon worked for the Ontario, Calif. Police Department ("Department"). When the Department engaged Arch Wireless to provide wireless text messaging service to its officers, it had an existing "no-personal use" e-mail and internet policy. Quon signed an acknowledgement that he had no expectations of privacy in his use of department computer equipment. After the text messaging service began, Quon attended a department meeting and learned the "no-personal use" policy also applied to text messaging.

Arch charged the Department a flat rate for up to 25,000 characters per month per pager. Use beyond this limit resulted in an overage charge. Quon was told "if you don't want us to read your text messages, pay the overage." And he did so for four months.

Tired of dunning officers engaged in overage use, the Department audited transcripts of all text messages--to determine if the maximum should be increased because of work necessity. It discovered a number of Quon's text messages were sexually explicit.

Quon sued, alleging the Department violated his Fourth Amendment right to be free of unreasonable searches. While the trial court found the Department was not liable because Quon had no "reasonable expectation of privacy" in his text messaging, the federal court of appeals reversed.

The court's Fourth Amendment privacy analysis is eyebrow-lifting. While the Fourth Amendment's protection from unreasonable searches is more commonly analyzed in a criminal investigation context, it has long been held that these protections stretch to non-criminal searches of federal/state employees. The touchstone of the Fourth Amendment is "reasonableness." And in this case, the issue clearly was whether Quon had a "reasonable expectation of privacy" in his text messages.

As noted earlier, Quon's knowledge of the Department's policy should have been enough to carry the day for the Department's review of his text messages. However, it assured Quon it would not review his text messaging so long as he paid for any overage and did so for four months, until conducting a secret audit without his consent.

Based upon these uncontested facts, the appellate court decided that Quon had a reasonable expectation of privacy and that the Department's audit was unreasonable. The court found that, if the Department was seeking to protect Quon from paying for work-related overage, there were less intrusive ways to do this (e.g., reviewing only the numbers dialed or having Quon review the transcripts first to redact personal messages).

Quon has received much attention in the labor and employment/ privacy arena. It's a wake-up call to government and private employers that they must be vigilant in enforcing written policies that negate any employee's expectation of privacy in electronic communications. The Department's decision to accommodate Quon--allowing him to pay for any overage and then not getting his consent to audit his text messages--was rewarded with a lawsuit that now has some teeth.

PHILIP G. KIRCHER is co-chairman of the commercial litigation department at the law firm of Cozen O'Connor. He can be reached at fiskletters@lrp.com.