Privatizing Workplace Privacy

Perhaps "the" question in this age of workplace technological innovation concerns the amount of privacy employees should have in electronic locations in the workplace. An important related question is whether public-sector and private-sector employees, who have different legal statuses under the state action doctrine, should enjoy the same level of workplace privacy. Recently, in the Fourth Amendment workplace privacy case of City of Ontario v. Quon, the United States Supreme Court considered both of these questions. Quon involved alleged privacy violations by a city police department when it audited an officer's text messages from his city-issued pager. In a cryptic decision, Justice Kennedy held for a unanimous Court that assuming the officer had a reasonable expectation of privacy in the pager, the City's search of the pager was reasonable under two possible legal tests. First, under the plurality test enunciated by the Supreme Court in O'Connor v. Ortega, it was reasonable because it was motivated by a legitimate work-related purpose and was not excessive in scope. Second, under the test outlined by Justice Scalia in his concurring opinion in O'Connor, it was reasonable because it would be considered "reasonable and normal" in the private-sector workplace. To varying degrees, both of these legal tests suggest that questions of workplace privacy in the public and private sectors should be treated the same. Rather than elevating private-sector privacy rights to the public-sector level, however, Quon suggests that public employee workplace privacy rights should be reduced to the level of employees in the private sector. Maintaining that public-sector workers are entitled to greater levels of privacy protections based on the text of the Constitution, the power of the government as employer, and the critical oversight role public employees play in American democracy, this Article argues for a new, two-step workplace privacy analysis which first focuses on the purpose of the search and then applies presumptively the Fourth Amendment's warrant and probable cause requirements to those searches undertaken for investigatory purposes. INTRODUCTION Conventional wisdom has long held that public employees with federal constitutional protections have stronger workplace rights than their private-sector counterparts. For instance, Samuel Issacharoff observed in 1990 that, "[s]ince the 1960s, the public sector has been the source of dramatic expansions in employee rights to free expression, due process, and privacy." (1) That this "dramatic expansion" occurred solely in the public sector stemmed from the fact that federal constitutional claims are only able to be brought against public employers as a result of the state action doctrine. (2) In the workplace privacy context, (3) this state of affairs meant that it was generally believed that public employees under the Fourth Amendment (4) had greater expectations of privacy than their private-sector counterparts. (5) Without federal constitutional protections, private-sector employees must instead rely on either the common law of torts (currently being restated in Chapter 7 of the Restatement of Employment Law) (6) or on various other federal and state legislative enactments, (7) for their workplace privacy rights. Yet, this understanding that public employees have more privacy protection in the workplace than their private-sector counterparts has been placed in considerable doubt by two recent developments. First, the startling pace of workplace technological innovation has made it more likely that government employers will utilize technologically advanced methods to intrude upon their employees' workplace privacy interests. (8) The second development is the recent decision by the U.S. Supreme Court in City of Ontario v. Quon, (9) validating the use by government employers of some of these very same technological methods to invade public employees' privacy interests. …