In City of Ontario, Cal. v. Quon, 2010 WL 2400087 (2010), Justice Kennedy for the United States Supreme Court held that a police department's search of an employee's text messages on an employer-provided pager was reasonable under the Fourth Amendment. 

There, an employee was issued an alphanumeric pager, capable of sending and receiving text messages, in connection with his service as a SWAT team member and signed a policy indicating he had no expectation of privacy in electronic resources of the department, which was later verbally expanded to include the pager.  The employee routinely exceeded his monthly character limits which prompted the department to request transcripts of the text messages in order to determine whether he was paying fees for work-related messages or if the overages were for personal messages.  The review revealed that a large number of the text messages were personal, sometimes sexually explicit and sent during work time.  As a result, the employee was disciplined.   

Finding that the Fourth Amendment extends to the government as a private employer, the Court assumed, for the sake of argument, that the employee had a reasonable expectation of privacy in the text messages.  However, the court found that the search had a proper non-investigatory purpose, and was reasonable because the employer limited the number of months in its review to an appropriate sample size, redacted all text messages during off-duty times prior to review, and the employee was told that his text messages were subject to audit.  Accordingly, the Court held that "[b]ecause the search was motivated by a legitimate work-related purpose, and because it was not excessive in scope, the search was reasonable..."  In doing so, the Court expressly stated that "the search would be regarded as reasonable and normal in the private-employer context" as well. 

For a copy of the opinion, click here.