Watkins Ludlam Winter & Stennis, P.A.

Many of us are well aware from our school days that the United States Constitution restricts governmental intrusion on our private lives.  One of the most fundamental constitutional rights we have as U.S. citizens is to be free from unreasonable searches and seizures.  In other words, the Fourth Amendment states that the government cannot search areas we deem private unless they have a warrant or have probable cause to search.

Individuals who work for governmental entities do not lose the right to be free from unreasonable searches and seizures simply because they happen to work for the government. Thus, public employers have to be wary of Fourth Amendment concerns if they want to search an area that an employee may deem to be private.  The United States Supreme Court has stated, however, in the context of an employer/employee relationship, the governmental employer need not have the same level of probable cause one might expect in a criminal context.  Governmental entities can also avoid Fourth Amendment concerns by well-drafted policies and procedures that undermine an individual’s expectation of privacy in areas such as their desks, lockers, etc.

What if the governmental employer has such well drafted policies that tell employees that they have no expectation of privacy sent over the government-provided computers, cell phones, or pagers?  Can the employer terminate for improper text messages, including many that were said to be sexually explicit?  The Supreme Court has agreed to address this very question. 

The facts facing the Supreme Court deal with the police department in Ontario, California.  According to departmental policy, the police department had the right to monitor all communications sent across the department’s computers, cell phones or pagers.  Three police officers and another employee filed suit claiming that the department’s monitoring violated their Fourth Amendment rights.  The employees stated that, despite the policy’s explicit language, a police official informally told officers that no one would monitor their messages if the officers personally paid for charges above a monthly allowance.  The lower court found that the informal policy essentially trumped the written policy and provided the employees with a “reasonable expectation of privacy” in their text messages.  Thus, according to the lower court, the government’s monitoring of the employees’ text message was in violation of the Fourth Amendment. 

The decision may have far-reaching implications.  It will very clearly provide some guidance as to when and how a public entity can monitor employees’ communications.  Depending on the language, the Court may also provide us with guidance about the issue in the private sector as well.