On Monday, December 14, 2009, the United States Supreme Court agreed to hear a case that will permit it to provide guidance to employers about their right to monitor its employees' electronic communications. Specifically, the Court has accepted for review the City of Ontario's appeal of the Ninth Circuit's decision in Quon v. Arch Wireless Operating Co. finding that a city police officer had a reasonable expectation of privacy in personal text messages that were sent from his city-issued pager.

Like most employers, the City of Ontario had a written electronics communications policy that expressly prohibited personal use of its computers and notified employees that they had no expectation of privacy with respect to any communications using the city's computer systems. The City's policy, however, did not make clear that this policy applied to its police officers' pagers or to text messaging. Instead, because the city's pager service contract with Arch Wireless charged the city additionally for each pager that exceeded 25,000 characters per month, the city informally permitted employees who exceed their monthly character limit to simply pay the overage charge. Despite this informal practice, the city contacted Arch Wireless to determine whether the pagers were being used primarily for personal reasons and Arch Wireless provided transcripts to enable the city to do so. After receiving these transcripts, the city learned that many of Sergeant Quon's texts were personal and even sexually explicit in nature. Upon learning that their texts had been reviewed, Sergeant Quon and others sued the city and the police department under the Fourth Amendment for an illegal search and seizure and the Stored Communications Act "SCA" and Arch Wireless for violating the SCA by turning the transcripts over to the city.

It is somewhat surprising that the Supreme Court accepted this case for further decision. Many initially were concerned when the Ninth Circuit's Quon decision was announced because it seemed contrary to the general trend permitting employers to monitor and review employee's emails on employer computers once they put employees on such notice. To me, Quon does not present a radical departure at all. First, the City's electronics communications policy did not explicitly address text messages. Then, the City complicated matters by permitting an informal practice to develop that strongly suggested to employees that their text messages would not be reviewed so long as they paid the overage charges from Arch Wireless. Simply put, by not updating its electronics communications policy and by permitting informal practices to develop, the City created a problem for itself that did not need to exist. As a result, the Supreme Court easily can decide Quon based on current judicial philosophy without breaking new ground.