Workplace Privacy Counsel : San Francisco Employment Privacy Law Lawyer & Attorney : Littler Mendelson Law Firm : Employment Related Privacy Issues

When anonymous speech is “commercial,” which typically will be the case when employers or executives come under attack, a trial court should apply a balancing test. The test weighs the anonymous speaker’s First Amendment rights against the “need for relevant discovery,” recognizing the "great potential for irresponsible, malicious, and harmful communication" and that particularly in the age of the Internet, the "speed and power of internet technology makes it difficult for the truth to 'catch up' to the lie." Although future application of these high-level principles is difficult to predict, the Ninth Circuit’s new approach to “unmasking cases” almost surely will result in greater success for employers and executives seeking to unmask anonymous speakers on the Web.

While savoring this victory, employers should keep in mind that litigation against anonymous speakers on the Web can be expensive, time consuming, and distracting. In many circumstances, the victims of an anonymous attack will be better served by letting the offending comment become lost in the daily flood of information on the Internet.

This entry was written by Philip L. Gordon and Christopher M. Leh.

Photo credit: rtiom

While public discussion of the case has revolved principally around the first element of Quon’s claim, i.e., whether Quon reasonably could expect privacy in his text messages, the Supreme Court seemed to focus more heavily on the second element, i.e., whether the City’s review of Quon’s text messages was excessive or unreasonable. During the trial in the case, the jury found that the City’s purpose in searching Quon’s text messages was to determine whether those messages were sent for business or personal reasons. Under persistent questioning from Justices Breyer and Sottomayor, Quon’s counsel struggled to identify a less intrusive means for the City to achieve this indisputably, legitimate purpose than the City’s reading all of Quon’s text messages. The Supreme Court could resolve the case on this initial element of Quon’s claim and not even address whether Quon’s privacy expectation was reasonable.

The Court also appeared skeptical of the Ninth Circuit’s conclusion that Quon reasonably could have expected privacy in his text messages. To reach that conclusion, the Ninth Circuit had relied upon a statement by Lieutenant Duke, the police official responsible for the text messaging program. Duke told Quon that he would not read Quon’s text messages to determine whether they were business-related or personal so long as Quon paid the service provider’s overage charges when Quon exceeded the contractual limit on the number of characters per month. Justices Alito’s and Ginsburg’s questions suggested that they viewed Duke’s statement to be limited to his own actions as opposed to a guarantee of Quon’s privacy against any search by the City. Justices Stevens’ and Kennedy’s questions honed in on the nature of Quon’s SWAT duties, suggesting that Quon could not reasonably expect privacy given that he was on call 24/7 and knew, or should have known, that his text messages might be evidence in criminal proceedings.

Interestingly, Chief Justice Roberts’ questioning suggested that he was somewhat sympathetic to Quon’s contention that he reasonably could expect privacy in his text messages. The Chief Justice noted in his questions that Quon paid the City for his personal text messages, sent at least some of the texts while off-duty, and was told by Duke that he (Duke) would not audit them. The Chief Justice also noted that the Internal Affairs investigators who reviewed the transcripts of Quon’s text messages had redacted the personal ones, suggesting that these investigators considered the personal messages to be private.

In another noteworthy twist, the United States Government, arguing alongside the City, asked the Court to adopt a bright-line rule that employers can defeat the reasonableness of any employee’s expectation of privacy by issuing a policy informing employees that they have no privacy in their communications over employer-provided equipment. The Court did not seem receptive to this position. Justice Sottomayor noted the Court’s well established precedent — O’Connor v. Ortega — holding that “operational realities” of an office are a factor in determining whether an employee had a reasonable expectation of privacy in the workplace and that the employer’s policy is just one factor to consider.

Perhaps most telling of the Court’s likely hesitance to adopt a bright-line rule in either direction were comments by Justice Alito and the Chief Justice. Justice Alito emphasized the newness of the communications technology in the following statement:

[E]lectronic communications are stored all over the place in – and there isn't a history — these are — these are relatively new. There isn't a well-established understanding about what is private and what isn't private. It's a little different from putting garbage out in front of your house, which has happened for along time.

The Chief Justice emphasized the evolving nature of communications technology in response to the federal government’s advocacy of a bright-line rule, stating, “We are dealing with [the Fourth] [A]mendment that looks to whether something is reasonable. And I think it might be the better course to say that the Constitution applies, but we are going to be more flexible in determining what is reasonable because we are dealing with evolving technology.” (emphasis supplied).

A ruling will be issued by the end of the Court's term in June 2010.

This entry was written by Philip L. Gordon.

Although there are some differences in the privacy standards applicable to public sector and private employers, the standards are sufficiently similar that the Supreme Court’s decision likely will provide important guidance for employers on at least three issues. First, the law is relatively well settled that private employers can review any communications stored on a corporate e-mail server when the employer notifies employees of the monitoring, typically through an electronic resources policy. Quon is one of the first cases to address whether the same rule applies when the employee’s communication is transmitted through a third-party service provider under contract with the employer. The issue has gained increasing importance as an increasingly large number of employees use text messaging during the work day. (A case currently under consideration by the New Jersey Supreme Court, Stengart v. Loving Care, addresses an employee’s privacy expectations in copies of e-mail stored on a company-issued laptop that were sent through the employee’s personal e-mail account to her attorney.)

Second, the Supreme Court’s decision likely will address how a formal employment policy that otherwise would defeat an employee’s privacy expectation could be countermanded by an informal representation to a specific employee. Here, private employers likely will receive guidance on the types of informal statements that could be sufficient to countermand a formal policy as well as the degree of authority of the person making the informal statement necessary to override the formal policy.

Third, the Supreme Court also granted review on the question whether the senders of text messages to the SWAT officer had a reasonable expectation that his government employer would not read them. This question raises an issue that often is overlooked in cases revolving around an employer’s review of employee e-mail, i.e., the privacy interests of the sender. Without further development, it is difficult to anticipate the extent to which the Supreme Court’s ruling on this issue might affect private employers and what that affect might be.

Notably, the Supreme Court denied the service provider’s request for review of the Ninth Circuit’s ruling that the provider violated the federal Stored Communications Act by disclosing the SWAT officer’s text messages to the Department without his consent. Under the Act, a communications service provider, such as an ISP or cell phone provider, generally cannot disclose stored communications without the sender’s or recipient’s consent. An exception permits disclosure to the subscriber — the Department in the Quon case — when the provider is a “remote computing service.” The Ninth Circuit ruled that a “remote computing service” is akin to an electronic filing cabinet. Because the provider in the Quon case was a facilitator of communications, it was not a “remote computing service” and, therefore, could not take advantage of the exception. With the growing prevalence of “cloud computing” services, the proper definition of a “remote computing service” has become increasingly important. The Supreme Court’s decision to forego review of this issue leaves the Ninth Circuit’s ruling on this issue intact.

At bottom, Quon reflects the dynamic nature of the law governing technology in the workplace as communications technology rapidly moves beyond e-mail, and societal expectations change.

This entry was written by Philip L. Gordon

Photo credit: Niklas Bildhauer

In yet another example, a federal district court in California held that a police officer had a reasonable expectation of privacy in salacious text messages exchanged with his girlfriend using a department-issued pager. In that case, Quon v. Arch Wireless Operating Co., the fact that the department had a written policy singing the same song as most electronic resources policies was irrelevant since the department had communicated an unwritten policy of not auditing the text messages except when an officer disputed charges for overages.

Perhaps judges are starting to worry about the privacy of their own e-mail? Perhaps it is time to revisit and revise your electronic resources policy?