Posner on Quon v. Arch Wireless Operating Co.

Steve Posner   By Steve C. Posner, Attorney, Posner Law Firm

When is notice to a government employee that an employer may conduct surveillance of employee communications sufficient under the Fourth Amendment? What are the Fourth Amendment privacy rights of third parties with whom the government employee has communicated? What federal statutory rights apply to communications of employees, employers, and service providers? The answers to any or all of these questions may be given in Quon.

Steve Posner first explains the factual background of Quon v. Arch Wireless Operating Co., writing:

“Quon was a police officer and SWAT team member employed by the City of Ontario, California (“Ontario”). He was issued a pager capable of text messaging. Ontario had no policy directed specifically at the pagers, but did have an employee manual prohibiting private use of city-owned computers and associated systems, reserving the right to monitor all network activity including e-mail and internet use, and stating that network access was not confidential. Quon acknowledged reading the manual. Ontario began issuing the pagers after Quon became employed, and after the manual was published.

“Ontario had no official policy regarding pager use. It had an informal policy that if an employee's use exceeded what Ontario's service contract with Arch Wireless Operating Co. (“Arch Wireless”) paid for, the employee would pay the overage. Police Lt. Duke, who oversaw the contract, told Quon that if he paid for the overages, his texting would not be audited. When Duke complained to Chief Scharf that he was tired of being a bill collector, Scharf told Duke to have Quon's messages audited to determine if they were work-related. Duke asked Arch Wireless for transcripts, and learned that Quon had exceeded his 25,000 character monthly allotment by more than 15,000 characters, and that many of the messages were personal, and some sexually explicit. Quon, his wife, and other participants in the audited communications sued for, among other claims, violations of the Fourth Amendment and Stored Communications Act.”

Posner then analyzes the court rulings in Quon, discusses the important constitutional issues involved, and explains why Quon is an important case that involves more than just the privacy rights of public employees.

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Steve C. Posner is the author of the annually updated legal treatise Privacy Law and The USA PATRIOT Act (LexisNexis/Matthew Bender), emphasizing the practical implications, burdens and options for organizations and individuals cooperating with and subject to government evolving reporting requirements, information requests and surveillance.

Mr. Posner frequently speaks on privacy and national security law to professional and community groups, as well as to undergraduate and graduate level university classes.

Mr. Posner is a former editor of the Technology Law and Policy Review column for The Colorado Lawyer magazine, and former co-chair of the Colorado Bar Association's Law and Technology Committee. He is admitted to practice law in Colorado, New York and California, and is in private practice in Evergreen, Colorado.

Privacy Law and The USA PATRIOT Act is available online to subscribers on lexis.com, and the print version can be purchased at The Store.

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