Kagan’s Brief on Monitoring Email

A closely watched case before the Supreme Court right now is City of Ontario v. Quon. The case deals with the question of how far a government employer can go in monitoring an employee’s email. The case was argued before the Court two months ago. This case gives the Supreme Court its first opportunity to address head-on an issue that’s increasingly a point of conflict in the workplace. Moreover, most employers have some type of Internet usage policy that permits the monitoring of employee email.

In this case, a city government provided pagers to its SWAT team members. A Computer Usage, Internet and Email Policy provided that the government could monitor the usage of all city-owned devices, even to the point of making public a record of the usage, although a supervisor had indicated to SWAT team members that emails and other messages that were purely personal weren’t covered by this policy.

A SWAT team member and a dispatcher were having an affair. Numerous electronic messages were sent back and forth between the two. Supervisors became aware of the affair by monitoring these messages. The question all employers want the Court to answer is whether an employee (a government employee in this case) has a reasonable expectation of privacy in messages sent through employer-issued communications equipment.

When Elena Kagan filed her Solicitor General brief with the Court, she made her sole argument as Solicitor General in favor of an employer. Kagan argued that under the facts of this case, the employer had the right to monitor the employee’s messages, regardless of whether sent by the employee or a recipient of the employee’s previous messages.

While one never knows for sure how the Supreme Court will rule in any case, it seems likely that its decision in this case will be for the government employer. There was a written policy. There had been meetings about the policy, emphasizing that pagers and other electronic equipment issued by the government could be used only for government business. Under these circumstances, it’s difficult to see how employees, even under the stricter standard of the Fourth Amendment applied to government employers, would have a reasonable expectation of privacy.

Stay tuned for the Supreme Court’s important decision in this case, as it will have impact on private employers as well as government employers.

For other posts on Kagan, click here, here, here, here, here, here, here, here, here, and here.