Stephen S. Wu-- SL: Legal Writer,, (408) 573-5737, 50 W. San Fernando St., Ste. 750, San Jose, CA 95113

Effect of Supreme Court Ruling on Workplace Virtual Worlds Use

On June 17, 2010, the United States Supreme Court issued a ruling in the highly-anticipated case of City of Ontario, California v. Quon. The case concerned a City of Ontario police officer, Mr. Quon, who used a City-issued pager for sending explicit text messages, and whose communications the City discovered when it audited usage in a review of the cost of the pagers. The Court ruled that the City and the police chief had not violated Mr. Quon’s Fourth Amendment right against unreasonable searches when it reviewed the text messages. The Court reasoned that the search and audit of the text of Quon’s communications was reasonable in scope. For a copy of the opinion, click here.
The Quon case has implications for private employers who issue electronic communications devices to employees and reserve the right to monitor employees’ communications. Nonetheless, the case involves a government employee, an employer that is a state actor, and the scope of the employee’s Fourth Amendment rights. Given this context, the decision does not directly apply to the conduct of private employees and employers.

Quon and the people with whom he exchanged text messages filed their complaint against the City of Ontario, the Ontario Police Department (OPD), the police chief, and the pager company. The plaintiffs contended that the City, OPD, and police chief violated their Fourth Amendment Rights and the Stored Communications Act (18 U.S.C. § 2701 et seq.) by obtaining and reviewing the transcript of Quon’s text messages. They also claimed that the pager company, Arch Wireless, violated the Stored Communications Act by turning over the transcript to the City.

The City made it clear in its Computer Policy that computer communications are monitored, and users should have no expectation of privacy over them. Significantly, however, the Computer Policy itself did not cover communications by pager text message. Rather, the OPD told employees and wrote a memo to them stating that pager texts would be treated the same as emails under the Computer Policy, which afforded no expectation of privacy to emails.

The Court ruled that the review of the message transcript was reasonable, even if it assumed that Quon had a reasonable expectation of privacy. The Court ruled that the search was motivated by a legitimate work-related purpose, determining whether the level of pager service was appropriate in light of the amount of communications taking place. Moreover, it was a reasonable and normal search, if the City had been a private employer. Therefore, the search was reasonable.

The portion of the Court’s ruling that the search would be “regarded as reasonable and normal in the private-employer context” is where the decision has an indirect bearing on the conduct of private employers. The lesson here is that employers who continue to make it clear in policy, employee training, and reminders that employees have no reasonable expectation of privacy are going to be in the best position to avoid privacy claims following the monitoring of employee communications. The search in Quon and the Court’s ruling is therefore a persuasive (but not binding) precedent that a similar search by a private employer would not give rise to a privacy claim.

The question then arises whether the Court’s ruling has any effect on workplace virtual worlds use. It is quite likely that most employers’ acceptable use policy does not cover the monitoring of communications on virtual worlds. In Quon, the OPD verbally extended the Computer Policy to pager text messages and followed it up with a confirming memo. It would have been better for OPD to modify its Computer Policy to cover pager communications and then obtain employees’ acknowledgement that they received it after distributing it to them.

If an employer wishes to monitor virtual worlds communications, it should at least follow the procedures used by the OPD. Better yet, it should amend its policies to cover virtual worlds communications, and make it clear that employees have no reasonable expectation of privacy over virtual worlds communications, if indeed that is its policy. In this way, Quon can help an employer coming to grips with new forms of communications, like virtual worlds, just as the OPD had to extend its policy to the use of pagers.