I think even if the police department in Quon
2008-10-12T21:17:00.000-04:00
I think even if the police department in Quon had posted multiple, repetitive privacy disclaimers, the holding would not have changed. In my view, the court latched on to the fact that there was not only a stated informal policy of not reviewing the text messages, but also the same system in practice. The police department allowed Quon to pay the overage "3 or 4" times rather than having his text messages subject to search. This certainly created a reasonable expectation of privacy and gave the court warrant to stretch and hold that the search itself was also unreasonable. I think that Quon can be read narrowly to hold that if the effective policy invites an expectation of privacy - even if it overrules an unused formal written policy - this privacy right will be protected. I should think that most employers do not have the type of "bargain" system that the police department in Quon had, where the employees were basically subsidizing their privacy rights.

That said, I think Quon could also be read broadly, which would force employers to be significantly more proactive about broadcasting and demonstrating their privacy policies. Indeed, Quon could be read to force employers to actually actively monitor their employees communications and broadcast these intentions to preserve their right of monitoring. However, given the high costs of this interpretation, I think it is unlikely.

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