Viewpoint: Where to draw the line on texting
When does a public employee have a reasonable expectation of privacy in communications sent using an agency’s equipment? That was the question many cities and counties were hoping the U.S. Supreme Court would answer in the recent case of City of Ontario v. Quon. In that case, Ontario, Calif., issued text pagers to its SWAT officers with the caveat that personal use of the pagers was limited to “light personal use.”
After a few of the SWAT officers consistently exceeded the text limit on the pager plan, the police chief ordered a review of the pager transcripts. He wanted to determine why the officers were exceeding their character limit. He wanted to know if the limit was too low or the officers were sending too many personal messages. One of the officers, Quon, sued the city, arguing that the city had illegally searched his messages in violation of the Fourth Amendment. The manager in charge of billing on the pager account told the officers he would not review their messages if the officers paid the overage charges. That policy, Quon argued, created an expectation of privacy in the messages.
The Supreme Court, however, did not decide whether the officers had a reasonable expectation of privacy in the text messages. Instead, the court said that electronic communications technology is evolving so rapidly that it would be difficult to predict how a public employee’s expectations of privacy will be shaped as the technology changes. The justices focused their attention on whether the city was reasonable in how it conducted the search. Although the court did not provide any definite rules to guide public agencies when employment-related searches are necessary, there are some guiding principles that agencies can apply.
1. Assume that the employee has an expectation of privacy in the place or thing searched or the electronic communication.
2. Only search if there is a good (legitimate) work-related reason to search (that can include to determine if the employee is wasting agency time or sending inappropriate messages on agency-owned equipment).
3. Search only what is necessary to accomplish the work-related goal. That is, do not search communications conducted outside of work hours or places that do not have work-related materials.
4. When in doubt, ask the agency’s attorney before conducing the search.
5. Even though the Supreme Court did not decide whether the city’s written electronic communication policy made the expectation of privacy unreasonable, agencies still should have written policies signed by their employees and regular training for managers, so they are kept aware of the policies and how to enforce them.
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Nancy Thorington, a Santa Rosa, Calif.-based attorney at Meyers Nave, drafted the amicus brief in City of Ontario v. Quon on behalf of the League of California Cities and California State Association of Counties. She also is the assistant city attorney for Cloverdale, Calif. She can be reached at [email protected].