9th Issues Major Decision Finding Privacy Right In Employee E-Mail

  Stop Your Snooping! Court Limits Employers’ Ability to Search Email is an important June 19, 2008 Wall Street Law Journal Blog story about Quon v. Arch Wireless, ___F.3d___(9th Cir. June 18, 2008). The court held that the 4th Amendment protected certain electronic messages. In finding a reasonable expectation of privacy, the court reasoned in part:

We do not endorse a monolithic view of text message
users’ reasonable expectation of privacy, as this is necessarily
a context-sensitive inquiry. Absent an agreement to the contrary,
Trujillo, Florio, and Jerilyn Quon had no reasonable
expectation that Jeff Quon would maintain the private nature
of their text messages, or vice versa. See United States v.
Maxwell, 45 M.J. 406, 418 (C.A.A.F. 1996) (“[T]he maker of
a telephone call has a reasonable expectation that police officials
will not intercept and listen to the conversation; however,
the conversation itself is held with the risk that one of
the participants may reveal what is said to others.” (citing
Hoffa v. United States, 385 U.S. 293, 302 (1966))). Had Jeff
Quon voluntarily permitted the Department to review his text
messages, the remaining Appellants would have no claims.
Nevertheless, the OPD surreptitiously reviewed messages that
all parties reasonably believed were free from third-party
review. As a matter of law, Trujillo, Florio, and Jerilyn Quon
had a reasonable expectation that the Department would not
review their messages absent consent from either a sender or
recipient of the text messages.

This is a major decision-particularly when one considers the importance of e-mail and text messaging today. The decision is lengthly and well researched. I am sure that this is going to spark much academic debate about privacy rights and e-mail.

Mitchell H. Rubinstein

Hat Tip:

Sachin Raval
Class of 2010
New York Law School
Zicklin School of Business at Baruch College