Supreme Court: Public Employer Search Not Unreasonable under Fourth Amendment
August 2010
In a unanimous decision, the U.S. Supreme
Court has held that the City of Ontario's review of transcripts of an employee's
text messages sent and received on a City-issued pager was a reasonable search
under the Fourth Amendment in City of Ontario, Cal.
v. Jeff Quon, et al., No. 08–1332 (June 17, 2010).
by Paul
J. Siegel, Esq. and Noel P. Tripp, Esq.
Jackson Lewis LLP
The Court disposed of the Quon case on narrow
grounds, preferring to avoid the risks of establishing "far-reaching premises"
before the role of technology in society and its Fourth Amendment implications
become clear. Nevertheless, the principles outlined by the Supreme Court are
instructive to all employers that allow employees to use electronic communications
devices—including cell phones, iPhones, and BlackBerries—although the decision
does not apply to employers in the private sector.
Facts of the Case
In Quon, the Ontario, California, police department
had issued pagers to its SWAT team members, allowing them to exchange text messages
to coordinate responses to emergencies. At the time, the City had a "Computer
Usage, Internet, and E-mail Policy" that permitted only incidental personal
use of City-owned computers and equipment. It warned employees that communications
could be monitored, and it stated expressly that employees should not expect
privacy in the use of the City-owned equipment. Sgt. Quon, a SWAT team member,
acknowledged in writing that he received and understood the policy. The City
further indicated that text messages would be treated identically to e-mail
messages under the policy.
Eventually, the reimbursement process through which Quon and other officers
repaid the City for "excess" text messages became an administrative burden,
and the department chief decided to review Quon's and another employee's message
transcripts to see if the overage limit was appropriate and to ensure officers
were not being required to pay for work-related expenses. After reviewing only
the messages Quon sent while on duty (off-duty messages were redacted), the
department determined that he had 456 personal text messages during a 1-month
period. These averaged 28 transmissions sent and received during a shift, only
3 were considered work related. Some of the messages were to or from his wife
(an Ontario police officer from whom he was separated), while others were directed
to his mistress (an Ontario dispatcher) and another officer. Many messages were
sexually explicit. Quon was disciplined.
Quon and the other plaintiffs sued the City for violations of their Fourth
Amendment rights under the U.S. Constitution and the California Constitution.
The Lower Court Rulings
The district court ruled that the plaintiffs had a reasonable expectation
of privacy in these text messages, but held a trial on the issue of the employer's
intent in conducting the search. The jury found that the employer's intent was
to determine whether the character limit was appropriate, leading the court
to enter judgment in favor of the employer. The plaintiffs appealed to the Ninth
Circuit Court of Appeals.
The Ninth Circuit agreed that Quon had a reasonable expectation of privacy
in the text messages. It found the City's practice trumped its own written policy,
its employees' signed acknowledgements, and its statements in staff meetings.
To determine if the search was reasonable, the court evaluated whether the
search was "justified at its inception, and whether it was reasonably related
in scope to the circumstances which justified the interference in the first
place." It found the scope of the search unreasonable because there were "a
host of simple ways to verify the efficacy of the 25,000 character limit … [was
available] without intruding on the [plaintiffs'] Fourth Amendment rights."
Thus, because the court determined there were "less intrusive" means to search,
the search was found to be excessively intrusive and violated the plaintiffs'
Fourth Amendment rights and rights under the California Constitution. The City
appealed to the U.S. Supreme Court.
The Supreme Court Ruling
On June 17, 2010, the Supreme Court reversed, holding that the City's review
of Quon's text message transcripts was a reasonable search under the Fourth
Amendment. The Court avoided deciding whether public employees have a reasonable
expectation of privacy in text messages sent on employer-owned equipment under
the Fourth Amendment and what particular standard ought to apply in making that
determination. It acknowledged that rapid changes in communications and the
means by which information is transmitted, as illustrated by advancements in
technology and what society views as proper behavior, created significant challenges
to setting legal standards for the workplace that would survive the test of
time. The Court noted:
Prudence counsels caution before the facts of the instant case are used
to establish far-reaching premises that define the existence, and extent,
of privacy expectations enjoyed by employees when using employer-provided
communications devices.
So, the Court assumed, without deciding, that Quon had a reasonable expectation
of privacy in his text messages and the case could be decided on narrower grounds,
i.e., whether the search was reasonable under well-defined Fourth Amendment
standards. Under the Fourth Amendment, a government employer is permitted to
conduct a workplace search without a warrant where it is "justified at its inception"
and reasonable in scope. A search is "justified at its inception" where it is
conducted for a "noninvestigatory, work-related purpose" or for the "investigation
of work-related misconduct." O'Connor v. Ortega,
480 U.S. 709, 725–26 (1987). A search is reasonable in scope where the measures
used are reasonably related to the objectives of the search and not excessively
intrusive under the circumstances.
Applying these standards, the Court held that the City's review of Quon's
text message transcripts was reasonable. According to the Court, the search
had a clear non-investigatory, work-related purpose at its inception—to evaluate
whether the monthly character limit was sufficient for the City's needs and
to ensure that employees were not paying out of pocket for work-related expenses.
As to the scope of the search, the Court found that reviewing the message transcripts
was an efficient way to determine if the messages were work-related or personal,
and was not "excessively intrusive." The Court pointed to several factors demonstrating
a lack of excessive intrusion on Quon's privacy, including the redaction of
off-duty messages and the limited period reviewed.
The extent of an expectation of privacy, the Court reasoned, is relevant
to assessing whether the scope of a search is reasonable. Moreover, "employer
policies concerning communications will of course shape the reasonable expectations
of their employees, especially to the extent that such policies are clearly
communicated," the Court said.
In two concurring opinions, Justice John Paul Stevens opined that Quon's
status as a law enforcement employee limited his expectation of privacy, because
he should have expected a degree of scrutiny of all his work-related communications,
while Justice Antonin Scalia urged a broader holding that government searches
involving work-related materials or investigative violations of workplace rules—those
that are reasonable and normal in the private sector—do not violate the Fourth
Amendment, arguing that deciding the case on narrower grounds because of evolving
technology was not an appropriate action for the Court to take.
Conclusion
All employers—public and private—must be prepared with comprehensive computer
and electronic equipment usage policies. The Court noted that these policies
will help shape an employee's expectation of privacy. Further, it is critical
that practices and policies be consistent, reflect current technologies, and
be clearly communicated.
Noel
P. Tripp is an associate in the Long Island office of Jackson Lewis.
Since joining Jackson Lewis, Mr. Tripp has practiced exclusively in the area
of employment litigation and has been involved in proceedings before federal
and state courts, the Financial Industry Regulatory Authority, and administrative
agencies. He has advised employers on compliance with various state and federal
laws affecting the workplace, including particularly the Fair Labor Standards
Act and New York Labor Law. Mr. Tripp can be reached at (631) 247–4636 or .
Opinions expressed in Expert Commentary articles are those of the author and are
not necessarily held by the author's employer or IRMI. Expert Commentary articles
and other IRMI Online content do not purport to provide legal, accounting, or other
professional advice or opinion. If such advice is needed, consult with your attorney,
accountant, or other qualified adviser.