The U.S. Supreme Court has set oral argument for April 19, 2010, to review the Ninth Circuit’s 2008 decision on employee privacy in Quon v. Arch Wireless Operating Co.  Although Quon concerns the scope of privacy rights afforded to public employees under the Fourth Amendment, the case also has forced private employers to renew their focus on ensuring robust and consistent enforcement of employee monitoring policies.  Unlike government employers, private employers are not subject to the Fourth Amendment’s prohibition against unreasonable searches and seizures; instead, they must comply with federal wiretap statutes and state law.  In practice, however, the “reasonable expectation of privacy” test courts apply to state common law privacy claims that govern private employers is virtually identical to the Fourth Amendment test.  Accordingly, the Supreme Court’s review of the Constitutional test likely will affect how courts view privacy claims brought against private employers.

In reviewing the Ninth Circuit’s decision in Quon, the Supreme Court will consider three issues: (i) Whether a police officer has a reasonable expectation of privacy in text messages transmitted on his department-issued pager, where the police department has an official “no privacy” policy, but a non-policymaking lieutenant announced an informal policy of allowing some personal use of the pagers; (ii) whether the Ninth Circuit contravened the Supreme Court’s Fourth Amendment precedents and created a circuit conflict by analyzing whether the police department could have used less intrusive methods of reviewing text messages transmitted by a police officer on his department-issued pager; and (iii) whether individuals who send text messages to a police officer’s department-issued pager have a reasonable expectation that their messages will be free from review by the recipient’s government employer.

For more information, please see our previous blog post on the Quon case.