In City of Ontario v. Quon, the United States Supreme Court found an employer had the right to review transcripts of text messages sent and received on the pager issued to its employee.  The court acknowledged that the employee had a reasonable expectation of privacy in his text messages, and that the employer’s conduct constituted a “search” within the meaning of the Fourth Amendment.  Ultimately, however, the court concluded that the search was limited in scope and reasonable under the circumstances.

According to the court, “[t]he search was justified at its inception because there were ‘reasonable grounds for suspecting that the search [was] necessary for a non-investigatory work-related purpose.’” The court also held that the scope of the search was reasonable, finding that reviewing the transcripts was “an efficient and expedient way to determine whether Quon’s overages were the result of work-related messaging or personal use.”

City of Ontario v. Quon reverses the decision of the Ninth Circuit Court of Appeals in Quon v. Arch Wireless, 528 F.3d 892 (9th Cir. 2008), which had held that the scope of the employer’s search of Quon’s text messages was unreasonable.  In reaching this conclusion, the Supreme Court emphasized the following facts:

•   The employer limited its review to two months of text messages

•   The employer excluded all text messages sent by Quon during non-work hours

•   Quon had been informed of the City’s Policy

•   Quon, as a police officer, should have realized that his actions were subject to scrutiny, and,

•   A reasonable employee should have expected a periodic audit of text messages on the police pager

Quon serves as a reminder to all employers about the importance of well-communicated policies that emphasize the employer's right to monitor employees' e-mails, text messages and Internet use.