More Detail on Quan Case

My colleague, Martha Zackin, has published a more extensive discussion of the issues before the U.S. Supreme Court in the Quan case --

ELB Law Information: Supreme Court to Hear Case re Employer's Access to Employee's Text Messages

Supreme Court will review some issues in Quon Case, denied review to other issues

Some additional information on yesterday's post regarding the Supreme Court's decision to hear the Quon case. The high Court agreed to hear some, but not all of the issues presented by the Ninth Circuit decision in the case.

The Court will consider whether a police sergeant assigned to a SWAT team had a reasonable expectation of privacy under the Fourth Amendment in text messages transmitted on a department-issued pager and stored by an outside service providerk even in the face of the City of Ontario's "general practice" of non-monitoring of such communications. The Court denied review (known as "certiorari") to questions of whether the surrender to the city in the first instance by Arch Wireless (the service provider) of those messages violated the Stored Communications Act.

The questions for review are limited, then, to three:

• Does a SWAT team member have a reasonable expectation of privacy in text
messages transmitted on his SWAT pager, when the police department has an
official no-privacy policy but a non-policymaking lieutenant announced an
informal policy of allowing some personal use of pagers?

• Did the Ninth Circuit contravene Fourth Amendment precedents and create
circuit conflict by analyzing whether the police department could have used
'less intrusive methods' of reviewing text messages transmitted by the SWAT
team member on his SWAT pager?

• Do individuals who send text messages to a SWAT team member's SWAT pager
have a reasonable expectation that their messages will be free from review by
the recipient's government employer?

Supreme Court To Decide Privacy of Employee Texts

U.S. Supreme Court this morning decided to hear a case on the privacy of employee text messages sent on employer-provided devices, reports the Washington Post (see below).

The case--City of Ontario v. Quon--could have profound implications on employee privacy rights, according to a Baltimore Sun report. It involves an Ontario, California police officer who sent sexually explicit messages to another officer using the department-issued device. The messages were discovered during an audit, and a lawsuit claiming privacy violations followed. California's Ninth Circuit Court of Appeals ruled in favor of the sender of the messages, but dissent by a number of judges prompted an appeal to the Supreme Court.

9th Circuit Opinion:
Quon v. Arch Wireless (9th Circuit)

Additional reports:
Washington Post
The Curmudgeon's Comments - City of Ontario v. Quon — USSC
Pittsburgh Tribune-Review

When employee handbooks don't tell the whole story.....

Written by Cynthia and Jennifer

The discussion of employer access to employee emails in our September 21 blog entry continues with another appellate court decision about workplace privacy rights.

In Stengart v. Loving Care Agency, Inc., the court completely rejected an employer's attempt to rely upon an email policy to gain access to an employee's confidential communications with her attorney conducted through the employer's email system. The court found that the employer could have no legitimate interest in reviewing an employee's private communications with her attorney, noting that "[p]roperty rights are no less offended when an employer examines documents stored on a computer as when an employer rifles through a folder containing an employee's private papers or reaches in and examines the contents of an employee's pockets; indeed, even when a legitimate business purpose could support such a search, we can envision no valid precept of property law that would convert the employer's interest in determining what is in those locations with a right to own the contents of the employee's folder of private papers or the contents of his pocket." The court went on to reject the notion that emails relating to an anticipated lawsuit against her employer would seem to be an illegitimate business use of the computer system: "the company had no greater interest in those communications than it would if it had engaged in the highly impermissible conduct of electronically eavesdropping on a conversation between plaintiff and her attorney while she was on a lunch break." Additionally, the court sanctioned the employer's law firm for not returning the emails to the employee as soon as the law firm became aware they were privileged communications.

This is a very interesting pro-employee decision but its lesson is clear: even email policies that notify employees that they are waiving certain privacy rights in the workplace do not give employers carte blanche to access or take ownership of all of those communications. Employers who access (intentionally or not) such information should promptly seek counsel before proceeding further.

$1.8 Million Verdict in Pretexting Case

Written by Cynthia and Michael

A Cook County, Illinois jury recently awarded $1.8 million dollars to Kathy Lawlor, who claimed that her former employer, North American Corp. of Illinois, violated her privacy rights by hiring a private investigator who fraudulently obtained her telephone records through the use of “pretexting” – or by pretending to be Lawlor herself. Some of you might be familiar with the concept of pretexting from the Hewlett Packard scandal in 2006 where HP’s Chairwoman directed independent security experts to investigate the source of an information leak. The security experts obtained the personal phone records of journalists and HP board members by pretexting – or by pretending to be them - and it ultimately allowed HP to determine the source of leak. HP’s efforts caused an uproar, including leading to criminal charges, a congressional investigation and the passage state and federal laws prohibiting pretexting.


In the summer of 2005, prior to the HP scandal, North American terminated Ms. Lawlor’s employment because she would not agree to modify her salesperson commission agreement prior to landing the biggest account of her career. As a result, Ms. Lawlor sued North American seeking to recover certain commissions and for a judgment to lift her non-compete agreement. Ms. Lawlor did not know that at the time she sued North American, it had decided to hire a private investigator to investigate whether Ms. Lawlor’s was stealing its confidential information and clients, and that it had provided certain personal information about Ms. Lawlor to the private investigator, including her Social Security number and phone numbers. During its investigation, in addition to stationing individuals outside Ms. Lawlor’s home, the private investigator arranged for a third party vendor to obtain Ms. Lawlor’s personal phone records by pretexting. When Ms. Lawlor later discovered that North American was investigating her activities she added a claim for invasion of privacy to her lawsuit.


At trial, North American denied that it knew that its private investigator had engaged in pretexting, but the jury was unsympathetic and awarded Ms. Lawlor $1.8 million, most of it coming in the form of punitive damages. North American is contesting the jury’s decision, and the parties continue to litigate North American’s claim that Ms. Lawlor misappropriated its trade secrets, but this case should serve as a warning to employers considering whether and how to conduct investigations of their employees. The North American case confirms that any time an employer conducts an investigation into an employee’s activities it runs the risk of violating that employee’s rights and a resulting lawsuit. Employers must takes steps to ensure that any investigation, whether it be conducted internally or through the use of third party investigators, do not utilize unlawful or other inappropriate methods, including the use of pretexting, which is now prohibited by state and federal law.

Long-Awaited California Decision on Cameras in the Workplace

California Supreme Court has finally issued its decision in a workplace privacy case finding that an employer's placement of a hidden camera in an office used by two employees did not violate the employees' right to privacy. This case has drawn much attention as it worked its way through the appellate courts.

My colleagues in the Mintz Levin Employment and Benefits Group have written a great Client Alert on the case.