Supreme Court Takes On Electronic Privacy Case

How much privacy should employees expect when using personal e-mail at work?

Although the answer used to be clear-cut ("None!"), the question won't be going away anytime soon. Courts across the U.S. have begun dealing with the endless nuances within the issue of employee electronic privacy and deciding cases in various different--and sometimes surprising--ways. (See "Court Protects Privilege of Personal E-mail Sent Over Company Network" and "Employers Can't Snoop in Privileged E-mails.")

The Supreme Court, however, agreed in December 2009 to hear a case that should shed some authoritative light on the subject.

In Quon v. Arch Wireless, a SWAT team officer in Ontario, Calif., won a June 2008 9th Circuit decision that said the police department violated his privacy by reading his sexually explicit text messages sent through a department pager system. Department policy formally stated messages could be reviewed. The employee's victory hinged on a supervisor's comment that messages would remain private if the officer paid his own overage charges.

Mayer Brown Partner Joseph Baker says despite the fact that Quon focuses on text messages as opposed to e-mail, it still concerns the broader issue of work place privacy in conjunction with advanced communication techniques.

"Even though the Supreme Court is operating in the limited area of text messages," he says, "it's still possible that that decision will result in some pretty significant statements about the nature of privacy and technology, and that could change things for workplace communications more generally."

The Supreme Court is scheduled to hear arguments in Quon this spring.

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