Supreme Court Upholds Email Monitoring — Agrees with Kagan

A few days ago, I did a post on the brief Elena Kagan filed as Solicitor General in the case of City of Ontario v. Quon. The U.S. Supreme Court has now decided this case, and its unanimous decision sides with the argument Kagan made in her brief. As  you may recall, this is the only brief filed by Kagan as Solicitor General supporting an employer’s position.

The Supreme Court found that it was lawful for a municipality to monitor the emails of SWAT team members in accordance with the municipality’s written policy. This is the Supreme Court’s first decision on this subject, and the fact that it ruled in the employer’s favor is significant, since many employers have adopted email monitoring or Internet usage policies over the past few years.

Please not two important points about the Supreme Court’s favorable ruling. First, the city had followed its written policy. This may be a good time for you to review your policy to see if it covers what you need to operate your business and a good time to remind managers and supervisors of the importance of following the policy. Second, it is possible for emails to be so personal that an expectation of privacy could attach to them. Thus, your policy needs to a business-related purpose, and it should be administered only for business-related reasons.

The Quon case involved a government employer which is held to a stricter Fourth Amendment standard in this kind of case than private employers. So, the Court’s ruling is especially good news for private employers. Even so, all employers should prepare a reasonable policy and enforce it in a reasonable manner.

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