The United States Supreme Court recently issued an important ruling regarding the right of a government employer to search text messages produced by an employee using an employer-provided electronic communication device. The Court's ruling provides guidance to school boards in drafting acceptable use policies and conducting searches of content created by employees on board-provided electronic communication devices.

In City of Ontario, California v. Quon, the City of Ontario, California ("City") acquired pagers able to send and receive text messages. The City's contract with its service provider limited the number of characters each pager could send or receive per month. Before acquiring the pagers, the City announced a "Computer Usage, Internet and Email Policy" ("Policy") that applied to all employees. Among other provisions, the Policy specified the City "reserves the right to monitor and log all network activity including email and Internet use, with or without notice. Users should have no expectation of privacy or confidentiality when using these resources." A later memo issued by the City clarified that the Policy applied to text messaging. Officer Quon signed an acknowledgement form that he had read and understood the Policy.

The City issued pagers to officer Quon and other officers of its police department. Officers who exceeded the character limits were required to reimburse the City for the overages. When Quon and other officers began to regularly exceeded their monthly character limits, their police chief sought to determine whether the character limits were too low or if the overages were for personal messaging.

The service provider produced transcripts of Quon's and another employee's text messages for a two month period. Upon review of the transcripts, the police chief discovered that many of Quon's text messages were not work related, and some were sexually explicit. Quon was disciplined for violating police department rules.

Quon filed suit against the City alleging its police department violated his Fourth Amendment privacy rights and the federal Stored Communications Act ("SCA") by obtaining and reviewing the transcript of his pager messages. Quon also claimed the service provider violated the SCA by providing the City with his transcripts.

A jury decided the police chief requested the pager transcripts for the legitimate reason of determining the efficacy of existing character limits to ensure that police officers were not paying for hidden work-related costs. Thereafter, the trial court granted the City summary judgment on the ground that the City did not violate Quon's Fourth Amendment privacy rights. However, the Ninth Circuit Court of Appeals reversed. The court of appeals held that Quon had a legitimate expectation of privacy in his text messages, and that the City's search was unreasonable even though it was conducted on a legitimate, work-related rationale. The appellate court cited to a host of less-intrusive means by which the police chief could have performed the audit. The appellate court also held that the service provider violated the SCA by giving the City the transcripts.

The United States Supreme Court reversed the Ninth Circuit, holding that the City's search of Quon's text messages was reasonable and that the City did not violate Quon's Fourth Amendment right to be free from unreasonable searches and seizures. For argument sake, the Court made the following assumptions: (1) Quon had a reasonable expectation of privacy in the text messages he sent on the City's pager; (2) the City's review of the pager transcripts constituted a search within the meaning of the Fourth Amendment; and (3) the principals that apply to a government employer's search of an employee's physical space apply with at least the same force when the employer conducts a search into the electronic sphere.

The Court opined that when conducted for a "noninvestigatory work-related purpose" or for the "investigation of work-related misconduct," a government employer's warrantless search is reasonable if it is "justified at its inception" and if "the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of " the circumstances giving rise to the search." Applying this logic, the Court found that the police chief's audit was for a noninvestigatory work-related purpose (i.e. to determine whether the City's contractual character limit was sufficient to meet the City's needs). The Court also found the City's audit was "reasonably related to the objectives of the search" since the City had a legitimate interest in ensuring its employees were not being forced to pay out of their own pockets for work-related expenses, or that the City was not paying for extensive personal communications.

Likewise, the Court did not find that the City's audit was excessively intrusive. The City's Policy placed Quon on notice that his messaging was subject to audit. Also, as a law enforcement officer, the Court felt Quon should have known his actions may come under legal scrutiny, and that this might entail an analysis of his on-the-job communications. The Court reasoned these factors lessened the risk the audit would intrude upon the highly private details of Quon's personal life. The court concluded that "even assuming there were ways that [the City] could have performed the search that would have been less intrusive, it does not follow that the search as conducted was unreasonable."

Lessons Learned:

The Court purposely chose not to decide whether Quon had a reasonable expectation of privacy in using his employer-provided electronic communication device. In avoiding this decision, the Court reasoned that information sharing and electronic communication technology is rapidly evolving (as is societal and workplace norms in this regard). Given this evolution, the Court was not ready to issue a "bright-line" ruling on employee's privacy rights while using employer-provided electronic communication devices. Therefore, it cannot be presumed that a school board employee has no reasonable expectation of privacy in using a board-provided electronic communications device. This is true even when, as in this case, the employee has signed an acceptable use policy that explicitly acknowledges he has no reasonable expectation of privacy when using an employer-provided electronic communication device.

Nonetheless, the Court relied upon the properly-executed acceptable use policy as a factor in deciding the City's search was not excessively intrusive in light of the circumstances giving rise to the search. Therefore, a school board should strongly consider having all employees who use employer-provided electronic communication and information sharing devices sign a carefully crafted acceptable use policy each year that addresses confidentiality and privacy rights. This would evidence a continuing understanding between the board and its employees on the issue, and would allow the board to update the policy to account for any changes in technology or the law that may occur.

Applying the Court's analysis to a school setting, a "non-investigatory work-related purpose" for a school board to search its employee's electronic communications, particularly while working, could include compliance with a public records request, an investigation into whether confidential student information has been protected, for purposes of completing performance evaluations, in defense of litigation concerning the lawfulness of the school district's actions, etc. Likewise, such content may be the proper subject of an investigation into work-related misconduct, including allegations of inappropriate contact or communications with students.

Ultimately the facts of each circumstance will dictate the permissible scope of a government employer's search into an employee's electronic communications and on-line activities. Therefore, school boards should consult with their legal counsel prior to commencing a search into the electronic communications of its employees.