An employee’s personal communications on a company owned device are different from the employee’s personal belongings because the belongings are the property of the employee, not the employer, even though the employee may bring them to work. By contrast, the employee has no property interest in personal communications that take place on the company’s electronic devices. While I suppose someone could take the position that the data that comprises the employee’s personal communication is property, and that the property belongs to the employee, the rule that courts seem to be adopting (tacitly if not explicitly) is that data residing on a company’s electronic devices belongs to the company, at least as long as the company says so in its policies.

To follow Martha’s analogy, the Valentine’s Day card that the employee puts on the shelf in her office is the property of the employee, although it still could be subject to search by the employer (see below). By contrast, the data comprising a Valentines Day e-card that the employee receives on her company email account is not the property of the employee. While this distinction may seem unfair to some, it is a distinction that nonetheless makes a difference, at least under the current state of the law.

The second question raised by Martha sheds light on why this distinction does not necessarily matter in practical circumstances, and therefore may not be really all that unfair. In O’Connor v. Ortega, the Supreme Court recognized that, while employees of the government retain some Fourth Amendment rights against searches in the workplace, the “special needs” of the workplace “make the warrant and probably-cause requirement impracticable for governmental employers.”

As a result, the plurality in O’Connor adopted a two step test to determine whether the Fourth Amendment would preclude a governmental entity from conducting a workplace search. First, the Court said, because “some government offices may be so open to fellow employees or the public that no expectation of privacy is reasonable,” courts should consider the “operational realities of the workplace” to determine whether an employee’s Fourth Amendment rights are implicated. Second, even if a government employee has some expectation of privacy, the employer’s search “for non-investigatory, work-related purposes, as well as for investigations of work-related misconduct, should be judged by the standard of reasonableness under all the circumstances.”

These principles actually drove the result in Quon, and are likewise frequently important in day-to-day workplace situations. In Quon, the Supreme Court ruled that the City’s search of Quon’s text messages was justified “because there were reasonable grounds for suspecting that the search was necessary for non-investigatory work-related purposes.” Specifically, the City had “ordered the search in order to determine whether the character limit on the City’s contract with the [text provider] was sufficient to meet the City’s needs.” In addition, the Court found that the “scope of the search” by the City was reasonable, “because it was an efficient and expedient way to determine whether Quon’s overages were the result of work-related messaging or personal use.”

The principles set forth in O’Connor and applied in Quon frequently come to bear in every day workplace situations, even though private employers are not subject to the same Fourth Amendment limitations as governmental employers. Specifically, the “operational realities of the workplace” for a private employer are that an employee’s personal communications on company owned electronic devices are not private, at least where the company so informs employees in its policies. Any expectation of privacy is reduced further if the employer informs employees that it can and routinely does monitor electronic communications that take place on company owned electronic devices.

While some employees would prefer some privacy in personal communications on company owned electronic devices (and a company could choose to allow that if it so desires, though it is not advisable to do so), the reality of the modern day workplace (and the rising tide of the case law) is simply not moving in that direction. The solution to this potentially emotional issue seems to be that, if an employee needs or wants privacy in personal communications at work, the employee should only have such communications on an electronic device owned by the employee, like a laptop or cell phone, particularly since such devices are relatively inexpensive. This solution fairly protects both the employer’s interest in having full access to and ensuring security of its property and workplace, with the employee’s interest in the privacy of personal matters.