Cell Phone Searches by Employers

This Article presents a framework for analyzing cell phone searches by employers. The framework proposed in this Article is structured around two primary variables: (1) whether the employee whose cell phone is searched works for a public or private employer, and (2) whether the cell phone is owned by the employer or employee. The starting point for developing a framework for cell phone searches is the Fourth Amendment to the United States Constitution, which prohibits “unreasonable searches and seizures” by state actors, including public employers. To be reasonable, a Fourth Amendment search or seizure must ordinarily be justified by a warrant or warrant exception.

One warrant exception of particular relevance here is the “workplace exception” established by the United States Supreme Court in O’Connor v. Ortega, which allows for certain employer-initiated searches on the basis of an employer’s own determination of reasonable suspicion. Other key Supreme Court precedents that impact employee cell phone searches include City of Ontario v. Quon, which applied the O’Connor exception to uphold an employer’s review of text messages on an employer-owned device; and Riley v. California, which established heightened privacy protections for personally owned cell phones.