Supreme Court Rules in Text Messaging Privacy Case (City of Ontario, CA vs. Quon): Implications for Enterprise Email and Text Monitoring Policies

Regular readers of this blog know that I've been following the legal proceedings around a text messaging privacy case involving City of Ontario, California police officer Jeff Quon and his employer, the Ontario (California) Police Department. Last year, the 9th Circuit Court sided with several police officers (including Quon) who had sued the department for reading hundreds of personal text messages (many of which were of a sexually explicit nature) that officers had sent and received on department-issued pagers.

The City appealed that ruling to the Supreme Court, which has issued its ruling today in City of Ontario v. Quon, U.S. Supreme Court case No.08-1332. In its ruling, the high court reversed the 9th Circuit's Court finding, ruling that the City's search and audit of Quon's text messages was reasonable. (You can read the full text of the court's decision here: City of Ontario, California, v. Quon (PDF format).)

Business and Legal Reports has a good summary of this case in the article, "Supreme Court Rules on Text Message Privacy Case." And, of course, the court's findings have been reported widely today in other media (for example, this LA Times article). 

Though this particular case involved the privacy of text messages and the privacy of government employees that send them, the outcome of this case will have an impact on workplace monitoring policies in all types of industries – not just government – and for all types of electronic communication mediums.

One of the main take-aways from the Supreme Court’s ruling today is that the employer’s policies, and the clarity with which those policies are communicated, are crucial to establishing what sort of “reasonable expectation of privacy” employees should have.

In this particular case, the court found that the City of Ontario’s search and audit of text transcripts was reasonable, not excessively intrusive and had a clearly work-related purpose (the City was trying to determine if employees’ text messaging limits were too low  and should be increased – during this audit, the content of Quon’s personal messages came to light).

The court also found that Quon did not have a reasonable expectation of privacy, in part because Quon had signed the city’s Computer Usage, Internet and Email Policy, which stated that the City “reserves the right to monitor and log all network activity… with or without notice.”

My advice to employers and employees is as follows:

1. Companies that monitor employees' outbound email and other electronic communications should clearly communicate to them what is being monitored and how. If that includes transmissions to "personal" email accounts via company networks or devices, this should be explicitly stated. If the company feels that employees should not have a reasonable expectation of privacy, this should be clearly communicated in a formal, written policy.
2. Additionally, as part of their electronic communications policies, companies should discourage employees from using personal accounts to conduct company business.
3. Employees should be aware that, even in the absence of a formal policy, their employer may be monitoring or auditing their electronic communications. For example, Proofpoint’s own research (http://www.proofpoint.com/outbound) finds that 46% percent of large US companies perform regular audits of outbound email content.

Of course, employers have many legitimate reasons for monitoring the content of email, web messages and text messages sent from their organizations, not the least of which concerns about compliance with data protection regulations including HIPAA and GLBA.

In our 2009 research on this topic, Proofpoint found that 43% of US companies had investigated a suspected email leak of confidential or proprietary information in the past 12 months and 34% had investigated an email-based violation of privacy or data protection regulations in the past 12 months.

With respect to text messaging, Proofpoint found that 13% of large US companies had investigated the exposure of confidential, sensitive or private information via an SMS text or Web-based short message service (e.g., Twitter). And 41% of those companies said that they are highly concerned about the risk of information leakage via Web-based short messaging.

More such statistics are available in Proofpoint’s 2009 Outbound Email and Data Loss Prevention in Today’s Enterprise report, which is available from http://www.proofpoint.com/outbound. (The 2010 edition of this report will be available in the coming weeks.)

Comments

[paul]

This is really a swell depiction of Canada. It's america's hat.