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It is standard practice for employers to make their employees sign polices regarding use of employer-owned electronic equipment. Despite this, it has long remained a quandary to what extent an employer can access any private information sent via company equipment. The Ninth Circuit recently shed some light on this question, finding that the Ontario, California Police Department ("the Department") violated an officer's privacy rights under the Fourth Amendment and California constitution after reading the officer's sexually explicit text message to his wife.

In Quon v. Arch Wireless Co. 529 F.3d 892 (9th Cir. June 18, 2008), the Department provided several officers, including Sergeant Quon ("Quon"), text messaging pagers. The Department had a general "Computer Usage, Internet and E-mail Policy" that stated the use of computers, networks, Internet and e-mail was limited to Department related business. Use of these mediums for personal benefit was considered a violation of the Department's policy. However, there was no official policy regarding use of the text messaging pagers. Under the Department's agreement with the pager company, each pager had a limit of 25,000 characters, after which the department was required to pay overage charges. Quon exceeded the pager limit on several occasions and the Department established the custom of telling Quon that if he paid the overaged charges his text messages would not be audited for business-relatedness. Quon paid the overage charges for three or four months. Despite paying, the Department conducted an audit of Quon's text messages without his consent. The Department determined that for one month Quon had exceeded the limit by 15,158 characters and that many of these messages were personal in nature and often sexually explicit.

Two Factors determine an employer's right to access an employee's private communications on company equipment: (1) the employee's reasonable expectation of privacy and (2) the reasonableness of the employer's review of that information. In Quon, the Ninth Circuit found that Quon had a reasonable expectation of privacy because of the custom that the Department would not review messages if the overage charges were paid. Additionally, the Court found that the Department's review of the messages was unreasonable because the Department could have used less intrusive means to determine whether the texts were for business or personal use than reading the content of the messages. Thus, the Ninth Circuit held that Quon's right to privacy was invaded when the Department conducted a review of the messages after the overage charges were paid.

This case exemplifies the need to maintain good, written employee polices. A clear, comprehensive company equipment policy that explains to employees limits on privacy in email or text communication eliminates an employee's reasonable expectation of privacy on work equipment. These written policies should be update periodically to include new and cutting edge forms of communication. Employers must take care not to create an "informal policy" that circumvents a well-written policy by acting in a way that gives an employee a reasonable expectation of privacy on work equipment. Further, an employer should proceed with caution when reviewing an employee's electronic communications. Employers should be no more intrusive than allowed by the written policy, or than is reasonably necessary to obtain the work-related information the employer is seeking.

For more information on authorizing or updating company electronic equipment use policies Employers are encouraged to consult their counsel.