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In a previous article, I discussed whether employees have privacy rights in the digital age. In a recent United States Supreme Court decision, City of Ontario v. Quon, 130 S.Ct. 2619 (2010), the Supreme Court addresses the similar question of whether an employer has the right to review an employee's personal messages.

The facts of this case are interesting. The city's police department told Quon and his co-workers that personal use of their employer-provided pagers would be tolerated to a certain degree. If he exceeded the monthly allotment of text messages, Quon was told he would have to pay the difference. Quon did go over the allowed number of texts, but his superiors got tired of collecting the fees.

At some point, the police chief ordered the records from the company that provided the texting service. After removing the texts Quon sent when he was off-duty, his bosses found that the vast majority of his texts were personal - 400 of 456 during one month alone, including sexually explicit messages to his wife and his mistress. As a result, he was disciplined. Quon sued, saying the search violated the Fourth Amendment protections against unreasonable searches for him and those who texted him. Both the federal district court and the U.S. Court of Appeals for the Ninth Circuit agreed with him.

The Supreme Court disagreed. In the first ruling of its kind, the justices stated that employers do have a right to look at an employee's personal messages as long as there is a "legitimate work-related purpose" to monitor them. The Court also said it would proceed cautiously in deciding how far an employer can go in searching the "electronic sphere" that has become an inescapable part of the modern workplace. While the Court acknowledged that Quon had some expectation of privacy, the Court said that the police department's review was justified. Still, the Court was reluctant to draw clear lines between what is private and what is not in the electronic workplace.

The Court's reluctance to set a clear guideline has irked some other judges. The Eleventh Circuit, in discussing Quon, wasted no time in opining that "[t]he Supreme Court's more-recent precedent shows a marked lack of clarity in what privacy expectations as to content of electronic communications are reasonable." Rehberg v. Paulk, 611 F.3d 828 (11th Cir. 2010) petition for cert. filed December 10, 2010. Since the Eleventh Circuit's case may yet be heard by the Supreme Court, the high court may take the opportunity to clarify its recent decision. Until that time, the ramifications of Quon remain unclear. Until the decision is clarified, employers should take from it that workers have some expectation of privacy in the work context, but that clear policies are needed and employers can conduct a review of documents and communications if there is a work-related reason.

Eric Nord works for the Crist, Krogh & Nord Law Firm in Billings, specializing his practice in the area of business law and litigation with a special emphasis on commercial transactions, employment law, real estate, construction law and corporate relations.

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