In Quon v. Arch Wireless Operating Co., 554 F.3d 769 (9th Cir. 2009), cert. granted, 130 S.Ct. 1011 (2009), a Federal Appeals Court addressed the issue of whether employees have a protected expectation of privacy in their text messages sent over employer-owned pagers. In Quon, a city employer contracted with a wireless compnay to provide two way pagers to city employees. While the city had no specific policy regarding personal use of the pagers, the city had a general computer and e-mail policy which provided that computers and related equiptment were city property and could not be used for personal reasons. However, despite this policy, the city also had an informal practice whereby employees' texts would not be audited as long as they paid any texting overage charges incurred.
Nonetheless, pursuant to an internal affairs investigation, the city audited the text messages of an employee who exceeded his monthly text allowance and discovered that the employee used his pager to send personal and sexually explicit text messages. The employee brought suit against the employer and the wireless provider, claiming that his Fourth Amendment rights against illegal searches were violated. The Court agreed, stating that the informal policy of not auditing employees' texts so long as they paid their overage charges created a "reasonable expectation of privacy" in the text messages. Furthermore, the Court held that the search itself violated the Fourth Amendment because it was unreasonable, as there were less intrusve ways of determining whether the employee violated the company policy, such as informing the employee that their pager was for work-related purposes only and that the next month, their text messages would be monitored to ensure compliance.
However, the United States Supreme Court has agreed to hear an appeal on this case, so it is unclear whether the holding in Quon will be upheld. In the meantime, it is critical that employees not use employer-owned computers, e-mail systems, and other communications devices to conduct personal business, to avoid any claims that the employee's messages violate employer policy.