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, No. 08–1332 (June 17, 2010).
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 Email 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 email 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.
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.
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