Quon v. Arch Wireless Lesson: Pay Attention to Policy and Procedure

Case: Quon v. Arch Wireless

Case Link:  0755282 Quon v. Arch Wireless Opinion

Editorial:

Much is being made about this case and the supposed impact Quon v Arch Wireless has on the ability for employers to review employee communications. I am a bit surprised by the reaction to the case, and it makes me wonder if the people responding to this case have actually read the opinion.

The Court’s opinion is actually very well considered and very focused in scope.  I tend to file this one under the failure of an organization to properly maintain, communicate and apply policy and procedure consistently. When I read the Court’s opinion I came away with the very distinct impression that if Ontario had done these things properly there would have been no case.

Having said that, I think this case is worthy of notice because of the illustration it gives corporate (and other) entities of the need for solid policy and procedure. In addition there were several cases relied upon (in the “Resources” section) that provide an instructive backdrop to this opinion.

Summary:

The Ontario police department ordered a review of text messages sent and received by one of its officers.

The text messages were ordered from Arch Wireless Operating Company – a third party provider contracted to carry the text messages.

The review was ordered to determine if pagers were being used for work related usage only.

The review of Quon’s transmissions stemmed from overages that incurred cost to the department. The review was ordered to determine if the pager plan needed to be increased because work related usage had increased.

The City had policy and procedure governing appropriate use of computers and “associated equipment” but had no specific policy directed at wireless pager communication.

There were conflicting recollections as to when, how and if notification that the pager transmissions were subject to review had been made.

The department could not access the text messages themselves, but rather through a contact at Arch Wireless.

It was found that many of the messages sent by Quon were sexually explicit and not work related.

Quon had gone over the limit three or four times before the review was done. Each time he simply paid the overage charge and no review of text messages was performed.

Issues:

The court further considered whether the rights of not just the officer (Quon) but also the rights of those he texted had been violated.

At issue was the reasonable-ness of the review conducted (was it just to determine misconduct, or was it to determine a need to expand the service) as well as the role that the wireless carrier played (ECS or RCS) and whether that violated the Stored Communications Act by turning over the messages to its subscriber (the City).

While the reason for the review was to be considered the methods to perform that review were also at issue.

Also at Issue was whether proper notification had been given that the communications could be reviewed.

The Court considered whether Fourth amendment rights were violated in light of the “informal” policy the department had towards text messaging.

Interesting Points:

Had the department simply used the “To and From” in their review there would likely have been no problem.

If there had been a more explicit policy to inform the employee that Text messages had no reasonable expectation of privacy there likely would have been no grounds for Quon’s claims.

Part of the policy issue was related to inconsistent application of that policy – There was an expectation that if the overages were paid that there would be no review. Quon had exceeded the limit three or four times and had paid for the overages and there was no review.

The court found that Fourth Amendment privacy rights had been violated. This was because the search, while reasonable in its purpose (to determine whether the business plan needed to be increased) was not reasonable in its scope. The Court found that there were many other methods that could have been used that would not have violated Quon’s expectation of privacy.

Resources:

Stored Communications Act, 18 U.S.C. 2701-2711 (1986)

Theofel v. Farey-Jones, 359 F.3d 1066, 1070 (9th Cir. 2004)

United States v. Forrester, 512 F.3d 500, 510 (9th Cir. 2008)

United States v. Heckencamp, 482 F.3d 1142, 1146-47 (9th Cir. 2007)

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