In 2010, the U.S.Supreme Court decided its first case on workplace electronic monitoring -- in favor of a city employer. (City of Ontario, California v. Quon, 130 S.Ct. 2619 (2010).)
The case involved Jeff Quon, a member of a city SWAT team, who—along with the rest of the team—was issued a pager with texting capabilities. The city had a written policy putting employees on notice that their email and Internet use was not private, and told employees that same policy applied to the pagers. However, employees were also told that their usage wouldn't be monitored as long as they paid any fees imposed for going over the character limit each month.
After Quon exceeded the limit several times, the city decided to audit his messages for the previous two months to determine whether the city should raise its character limit. The audit revealed that Quon had used his pager extensively for personal messages, including sexually explicit messages. Quon and several people with whom he had texted sued, alleging invasion of privacy.
The U.S. Court of Appeal for the Ninth Circuit found in Quon's favor. It found that Quon had a reasonable expectation of privacy in his text messages, based on his supervisor's statements that those messages would not be read. It also found that the city had a reasonable justification for searching. In the end, the Court found that the city should have used less intrusive means of determining whether to raise its character limit, such as asking Quon to perform the audit himself or warning Quon that his messages would be audited going forward, rather than reading messages that had already been sent.
The U.S. Supreme Court disagreed, finding that the city's monitoring was justified and that Quon had no legal claim that he had been subjected to an unreasonable "search" under the Fourth Amendment of the Constitution. The outcome doesn’t mark a change from prior cases: Courts have largely upheld the rights of employers to monitor employee communications, in the public and private sector.
Although the decision favored the employer, the court's opinion points out that technology changes quickly -- and has become a vital means of communication and expression, on and off the job. The majority opinion says that this might create a stronger privacy right:
“The Court must proceed with care when considering the whole concept of privacy expectations on communications made on electronic equipment owned by a government employer. The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear. . . . Cell phone and text communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self-identification. That may strengthen the case for an expectation of privacy.”
Because Quon involved a public employer, it doesn't apply directly to the private sector, which is not bound by the Fourth Amendment. However, courts have generally followed similar principles in analyzing these cases against private employers. It remains to be seen whether courts in the future will draw a line on employer efforts to monitor employee communications or continue the current trend of allowing employers to read employee email messages and texts.