By Alan S. Wernick, Esq.
FSB FisherBroyles LLP
In today's environment, employees (and independent contractors) frequently do their jobs using technology provided by the hiring party. Examples of that technology include computers, software, Internet, e-mails, cell phones and pagers. The businesses that provide technology to their employees or independent contractors often will set forth policies regarding the use of the technology. It is time again to review those policies in light of a recent U.S. Supreme Court decision.
In Quon v. Arch Wireless Operating Co., Inc., et al. (June 17, 2010), the U.S. Supreme Court examines technology usage policies and Fourth Amendment implications.
The Fourth Amendment of the U.S. Constitution states, "The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, shall not be violated. ." This is not limited to criminal investigations. As the court notes, "The amendment guarantees the privacy, dignity and security of persons against certain arbitrary and invasive acts by officers of the government, without regard to whether the government actor is investigating [a] crime or performing another function."
The Quon case involves several police officers (respondents) who were issued pagers by their employer (petitioner), the Ontario, Calif., Police Department, and who used the pagers for personal text message communications. The department requested pager bills as part of its auditing of the invoices, and Arch Wireless Operating Co., Inc. (Arch), which contracted to provide text-messaging services, furnished them to the Police Department, along with copies of the text messages sent by the respondents. Some of the messages were "personal in nature and often sexually explicit."
The Supreme Court, in reversing the 9th U.S. Circuit Court of Appeals, held that the Police Department did not violate the employees' Fourth Amendment rights when it searched the respondents' text messages. The court noted that even if Quon had a reasonable expectation of privacy in his messages, the department did not necessarily violate the Fourth Amendment by obtaining and reviewing the transcript of the text messages.
As a general matter, warrantless searches, the court reminds us, are per se unreasonable under the Fourth Amendment: "There are 'a few specifically established and well-delineated exceptions' to that general rule, and one of the exceptions looks to the 'special needs' of the workplace." The court states that "when conducted for a 'noninvestigatory, work-related purpos[e]' or for the 'investigatio[n] 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."
Essentially, the court took a practical approach that the Police Department's auditing of the text messages to see if the billing (work versus personal charges) was accurate (that is, both the department and the officers were paying the appropriate amount for the text messaging service), was for a legitimate "noninvestigatory work-related purpose," and therefore a reasonable search under the Fourth Amendment.
In considering whether the search was too intrusive, the court states it has "repeatedly refused to declare that only the 'least intrusive' search practicable can be reasonable under the Fourth Amendment." That rationale "could raise insuperable barriers to the exercise of virtually all search-and-seizure powers" . because "judges engaged in post-hoc evaluations of government conduct can almost always imagine some alternative means by which the objectives of the government might have been accomplished."
The court goes on to say, "The analytic errors of the court of appeals in this case illustrate the necessity of this principle. Even assuming there were ways that OPD could have performed the search that would have been less intrusive, it does not follow that the search as conducted was unreasonable."
Companies should take a fresh look at their policies regarding corporate computer, software, Internet, text messaging and e-mail systems that contain the company's business data, including evaluating any employer's right of inspection in light of the Quon decision.
As Judge Richard A. Posner in Muick v. Glenayre Electronics , (U.S.C.A., 7th Circuit, 2002) observed, "The laptops were Glenayre's [the employer's] property, and it could attach whatever conditions to their use it wanted to. They didn't have to be reasonable conditions; but the abuse of access to workplace computers is so common (workers being prone to use them as media of gossip, titillation and other entertainment and distraction) that reserving a right of inspection is so far from being unreasonable that the failure to do so might well be thought irresponsible."
In the event of a dispute, the facts surrounding that inspection will have to pass the scrutiny of the Fourth Amendment. Now is a good time to review your organization's technology policies. Ignoring these preventive legal procedures can create additional, and unexpected, legal risks or expenses to the business.
©Alan S. Wernick