Does the Fourth Amendment Protect Text Messages?

The United States Supreme Court accepted certiorari in City of Ontario v. Quon, from a Ninth Circuit Court of Appeals case in which the Court held that police Sergeant Quon's Fourth Amendment rights were violated when sexually explicit text messages sent to and from his department-owned pager were accessed by the city. Although the policy of the City of Ontario was that employees had no expectation of privacy in messages transmitted on department-owned pagers, Quon was told that text messages would not be audited if Quon paid for charges he incurred beyond the city's plan. Quon reportedly exceeded the character limit under the city's plan several times and paid for the extra usage without incident.

The Fourth Amendment to the United States Constitution protects the right of the people to be secure in their persons, houses, papers, and effects, and against unreasonable searches and seizures by the government. The United States Supreme Court holds that reasonableness of a search is determined by assessing:
  • the degree to which it intrudes upon an individual's privacy, and
  • the degree to which it is needed for the promotion of legitimate governmental interests.
In this case, the Ninth Circuit found that Quon did have a reasonable expectation of privacy in his text messages based upon the city's informal policy that the text messages would not be audited if overages were paid. It also held that the search was unreasonable in scope because less intrusive methods were available. For example, the court suggested it would have been less intrusive if the Department had issued a warning to Quon that for the month of September, he would be forbidden from using his pager for personal communications and that the contents of all of his messages would be reviewed. Another less intrusive method would have been to ask Quon to redact personal messages and grant permission to the Department to review the redacted transcript.

Although private employers are not bound by the Fourth Amendment, this case presents a sobering reminder for all employers that even well-drafted employment policies that are not properly enforced leave room for liability exposure.
Author: Ann Eberts

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