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Departments : Point of Law

Electronic Privacy on the Job

Can a department monitor its officers' use of official devices?

September 03, 2010  |  by Devallis Rutledge - Also by this author

The Supreme Court, in a judgment concurred in by all nine justices, reversed the Ninth Circuit and held that assuming Quon had a reasonable expectation of privacy in his texts sent via an employer-furnished pager, management's limited audit of his on-duty texts for the purpose of evaluating the need for a new service agreement did not constitute a violation of the Fourth Amendment.

At the same time, the court cautioned that its decision would not necessarily cover all instances of access to electronic information.

Takeaway Value

Several important points can be derived from statements in the court's decision in City of Ontario v. Quon:

  • Public employers are bound by the Fourth Amendment. "The Fourth Amendment applies when the government acts in its capacity as an employer. Individuals do not lose their Fourth Amendment rights merely because they work for the government instead of a private employer."
  • Legitimate expectations of privacy may evolve with changing technology. "The Court must proceed with care when considering the whole concept of privacy expectations in communications made on electronic equipment owned by a government employer. Prudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices. Rapid changes in the dynamics of communication and information transmission are evident not just in the technology itself but in what society accepts as proper behavior."
  • It is important for employers to have clear, comprehensive policies that put employees on notice of the conditions of use of department-issued equipment. "Employer policies concerning communications will of course shape the reasonable expectations of their employees, especially to the extent that such policies are clearly communicated."
  • Since police communications may become evidence in a criminal case, officers should realize the risk that their messages may have to be disclosed. "Even if he could assume some level of privacy would inhere in his messages, it would not have been reasonable for Quon to conclude that his messages were in all circumstances immune from scrutiny. As a law enforcement officer, he would or should have known that his actions were likely to come under legal scrutiny, and that this might entail an analysis of his on-the-job communications."
  • The ruling in Quon may not apply to all future scenarios of employer access to employee communications made over employer-issued devices. "A broad holding concerning employees' privacy expectations vis-à-vis employer-provided technological equipment might have implications for future cases that cannot be predicted."

The Supreme Court emphasized that it was not necessarily finding that Quon had a reasonable expectation of privacy in his texts over departmental pagers but was simply assuming that he did for the sake of argument, since the case could be resolved by finding any invasion of such an arguable expectation was reasonable under all of the circumstances.

Said the court, "Quon was told that his messages were subject to auditing. The search was permissible in its scope. The employer did not violate Quon's Fourth Amendment rights."

Prudent Precautions

Even though the Supreme Court declined to lay down any hard and fast rules that might give concrete guidance to both management and officers, two conclusions seem safe to draw.

Management: In consultation with civil legal advisers, managers should promulgate written policies covering the conditions of employees' use of all issued equipment, including communications devices, that clearly spell out permissible and impermissible uses and the fact (as applicable) that employee use is subject to monitoring, auditing, and discipline for unauthorized use.

Employees: Officers and others who are assigned communications devices by their employer should be sure they understand and abide by applicable policies regarding personal use and management oversight.

Both managers and employees should consult local legal advisers for additional considerations. (Connecticut and Delaware, for example, statutorily prohibit unannounced monitoring.) 

Devallis Rutledge is a former police officer and veteran prosecutor who currently serves as Special Counsel to the Los Angeles County District Attorney. He is the author of 12 books, including "Investigative Constitutional Law."

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Comments (3)

Displaying 1 - 3 of 3

mcgee14 @ 9/6/2010 5:36 AM

At my department (Ohio), we were issued city cell phones for calls and text messages. We are allowed to use them for personal use too per our agreement (for phone calls and text messages). The city I work for has us pay a "fringe benefit" tax for the personal side of the cell phone. Does anybody know when, or where I can look it up, our "personal side" of our cell phones become public record?..example - our text messages or phone numbers we called for personal use. THANKS FOR ALL HELP!

lillyofsisk @ 9/6/2010 6:34 AM

I personally use work issued devices for work and my personal devices for personal messages. Quon knew his department policies. If you do the math, his personal messages averaged about 13 a day. A tad excessive if you ask me and apparently his department felt the same. But then I prefer a simple phone call over text messaging.

wsatifrank @ 9/7/2010 9:26 AM

So, even though he signed the waiver, he's claiming 4th amendment. He should have declined to sign the waiver form in the first place. The 9th Circuit's decision will be overturned, yet again.

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