Judicial Notebook

A case before the U.S. Supreme Court is examining Americans’ right to privacy in their use of employer-owned electronic technology to send personal e-mail and text messages. Many companies provide e-mail addresses for employees, and some also provide mobile devices, such as pagers and cell phones. Research shows that most companies have policies that allow them to monitor employees’ electronic communications. Companies with these policies notify employees that messages an employee sends on work e-mail or mobile devices may be watched. Americans generally have a right to privacy regarding their personal communications, and such exchanges cannot be read by the government for investigative purposes without a search warrant. However, employees may not have a reasonable expectation of privacy for these electronic communications, especially when the employer is monitoring them for criminal activity.

The Supreme Court is now examining the privacy of text messages sent on a work pager in City of Ontario v. Quon. The court must decide whether SWAT team members had a reasonable expectation of privacy for personal texts sent on a SWAT-provided pager. The Ontario, Calif., police department had an explicit policy that work e-mail could be monitored, but there was no explicit policy that texts on work pagers would be monitored. Each officer had a limited number of texts per month that could be sent on their pagers, and the department required them to pay for overages, assuming some of the texts were personal. The informal policy was that the texts would not be read as long as the officers continued to pay for the extra personal use. Officer Jeff Quon and the other officers involved in the case sent personal texts on their SWAT pagers, and they were not monitored until the department wanted to stop doing the accounting required for the overages. The department obtained the texts from the mobile carrier, which revealed personal use of the pagers, some of which was sexually explicit. This discovery resulted in personnel actions against Quon and the other officers. The Supreme Court must decide whether the SWAT team members had a reasonable expectation of privacy in their text messages given the formal policy regarding e-mails and the informal policy of allowing personal text messages that were previously unmonitored.

Because it is difficult to keep up with the speed of technology and its impact on daily life, there has been little published research on the expectation of privacy for work-related electronic communication. No research published to date has specifically investigated perceptions of privacy in text messaging. Some research on the intrusiveness of various types of searches indicates that searches similar to reading personal text messages (including phone tapping, computer tapping and diary reading) are perceived by the public as among the most invasive of privacy. This research did not investigate perceptions of reading e-mails or text messages, nor did it investigate how monitoring policies might decrease the expectation of privacy for these and related activities like texting.

Other research indicates that employees do not necessarily expect less privacy when their employers are monitoring their electronic communications, even though they are aware of the policy. In addition, employees may not change their behavior just because a monitoring policy exists. They may continue to have personal and sometimes inappropriate communications on work devices even if they know these communications may be monitored. This research indicates that there may be no relationship between the awareness of or the acceptance of a monitoring policy and a decrease in prohibited behaviors.

Together, this small body of research indicates that employees might have an expectation of privacy for personal communications regardless of their awareness of department monitoring policies and that reading personal texts may be perceived as invasive and unreasonable.

In sum, there has been little psychological research that might inform the Supreme Court’s decision in this case. As electronic communication continues to expand, the need for research in this area is likely to grow. In fact, there is little to no psychological research on search and seizure generally, even though many legal decisions about violations of the fundamental right against unreasonable search and seizure rely on perceived expectations and perceptions of reasonableness. More psychological research on the specific situation in this case and on search and seizure would be useful to courts and companies in their policymaking.

“Judicial Notebook” is a project of Div. 9 (The Society for the Psychological Study of Social Issues).