Public Employees’ Shifting Privacy Expectations in the Digital Age

Abstract

Recent developments in portable wireless and internet-capable technologies have improved countless facets of everyday life. The ubiquity of Blackberrys, iPhones and other 21st century communication devices has reshaped modern commerce, social interactions and litigation in ways that our legislatures and judiciary can seldom keep up with. The use of these technologies in the workplace has led to increased workplace efficiencies as well. Many 21st century workers are equipped with these devices by their employers and leave the office only to continue working remotely for ever-increasing amounts of time. This heightened access between employer and employee has led to some troubling results. A recent study by the American Management Association of employer administration of workplace technology found that two-thirds of employers monitor their employees’ internet connections, 43% monitor employees’ e-mails and 28% have fired workers for misuse of electronic messaging services. But simply because there may be employer policies in place that limit privacy expectations does not imply that Americans should no longer expect any privacy once they enter the workplace. It is possible that increased scrutiny may actually stifle workplace innovation. Regardless of the recent developments of the American workplace, the Fourth Amendment affords public employees with certain privacy expectations and it continues to protect public employees from unreasonable searches by their employers. As of the writing of this note, the Supreme Court has yet to decide whether or not the Fourth Amendment to the U.S. Constitution protects government workers from unreasonable searches in their e-mails and text messages. This note will argue that the Supreme Court should recommit itself to its previously established “operational realities of the workplace” test as it applies in the yet to be decided Supreme Court case of City of Ontario v. Quon and rule in favor of Jeff Quon on the question of his Fourth Amendment workplace privacy rights as they apply to messages sent from his workplace issued text messaging device. This note will also discuss pragmatic steps that employers, employees and practitioners should consider in light of the recent widespread shifts in workplace technology and monitoring.