California has a State Constitution that explicitly extends privacy rights to all citiizens in their interactions with other private citizens of the State. This expanded protection is unlike the U.S. Constitution which is limited to the actions of government.
A U. S. Supreme Court case, City of Ontario v. Quon (2010) 130 S.Ct. 2619, illustrates the key issues raised by an employer’s seizure of an employee’s mobile phone records. Quon was an Ontario CA police officer who used his government issued cell phone to text personal text messages of a sexually explicit nature during work hours. The Department redacted the after duty hours text messages, and focused only on duty-time texting. Using what it found, the Department disciplined Quon. The trial court forund for the City. the Ninth Circuit held for Quon. On appeal to the U.S. Supreme Court, the Court reversed the Ninth Circuit.
The Department justified the search on the grounds that it needed to determine if the cap on usage it allowed as reimburseable usage to employees was set too low, given a history of overages by the employees. [It was in the course of this audit that the offensive and excessive texting during work hours was discovered.] The Department stated that it conducted the audit for that purpose, and that the purpose of reasonably related to its business or “operational” purpose. The Supreme Court agreed, and held that the search was reasonable under the circumstances. In part, the decision rested on the argment that the Department issued a policy stating that mobile phone use was subject to review by the Department. [That the policy omitted explicit inclusion of text messaging did not trouble the Justices.]
Conclusion: If your employer provides the mobile phone and the mobile phone service, and has a clear, consistent, and enforced policy that personal calls/texts/postings during business hours or work duties are subject to inspection by the employer, your subjective belief in the privacy of personal messages may not be given objective, legal protection. On the other hand, your expectation of privacy may be more “reasonable” and legally protected if you provide your own mobile phone, your own mobile phone service, and your employer expects and knows you will be using the phone for personal and private purposes during both working and non-working hours, but requires you to share all your calling/texting/posting information as a condition of reimbursing your for the service.
For a full “offical” text of the Supreme Court decision in Ontario v. Quon, see the following:
