The Supreme Court Weighs In On Employee Privacy Expectations: City of Ontario v. Quon, 130 S. Ct. 2619 (2010)
In a case it described as “touching issues of far reaching significance,” the United States Supreme Court recently considered an employee’s right to privacy in text messages sent and received on a work-provided pager and his employer’s right to access records of those messages. In City of Ontario v. Quon, the City of Ontario, California acquired 20 pagers and distributed them to Quon, a police sergeant, and other members of the local SWAT team. Before distributing the pagers, the City published a policy specifying that “[the City reserves the] right to monitor and log all network activity including e-mail and Internet use, with or without notice. Users should have no expectation of privacy or confidentiality when using these resources.” While the policy did not apply to text messages on its face, Quon and other employees were told that texts sent on the pagers would be treated like email messages.
Over the following months, Quon exceeded his monthly text message usage and was reminded by a member of the police department that pagers were “considered email and could be audited.” Quon paid the City for the overage charges rather than submit to an audit, an arrangement offered to other employees as well. When Quon continued to exceed allotted usage, the department finally decided to audit the messages to determine whether the character limit for text messages was too low and officers were being forced to pay for work-related overages or, conversely, whether many of the messages were personal in nature. A member of the police department contacted the wireless company, who provided him with a transcript of the text messages sent to and from Quon’s pager. The transcript revealed that many of the messages were not work-related and, indeed, some were sexually explicit. A further internal affairs investigation, which was limited only to a review of the messages Quon sent during work hours, revealed an overwhelming misuse of the pager to send personal messages, in violation of department rules. Quon was disciplined by the department.
Quon, along with other officers, filed suit in United States District Court alleging that, in accessing the text messages, the City violated his Fourth Amendment rights and the federal Stored Communications Act, 18 U.S.C. § 2701, et seq. (“SCA”), and that the wireless company violated the SCA by turning over the records. The District Court held that Quon had a reasonable expectation of privacy in the messages, but that the reasonableness of the City’s search of the records turned on the purpose for the search – i.e., if it was to determine whether Quon was “wasting time” on the job, it would be improper, but if it was to determine whether officers were being forced to pay work-related costs, it would be Constitutionally permissible. A jury subsequently determined that the purpose of the audit was to evaluate the efficacy of the text messaging program. The District Court accordingly held that the City did not violate the Fourth Amendment. On appeal, the Ninth Circuit reversed, agreeing that Quon had a right to privacy in the text messages, but instead holding that the search was unreasonable because there were a number of less-intrusive means to “verify the efficacy of the … character limit.” The Ninth Circuit further held that, in turning over the transcript, the wireless company had violated the SCA.
In reversing the Ninth Court’s decision with regards to the City, the Supreme Court first announced that it was declining to adopt a “[b]road holding concerning employees’ privacy expectations vis-à-vis employer-provided technological equipment,” cautioning that, “the judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear.” Instead, the Court fashioned its narrower holding on an application of the principles announced in O’Connor v. Ortega, 480 U.S. 709 (1987). Specifically, when conducted for a “non-investigatory, work-related purpose[e]” or for the “investigatio[n] of work-related misconduct,” a government employer’s warrantless search is reasonable if it is “justified at its inception” and “the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of” the circumstances giving rise to the search. The Court held that the City’s search of Quon’s text messages was justified at its inception because, as a jury had found, the search was conducted to determine the sufficiency of the message limit in the City’s contract with the wireless provider and, therefore, “necessary for a non-investigatory work-related purpose.” Furthermore, the search was reasonable because it constituted “an efficient and expedient way” to determine the source of Quon’s overage charges. Finally, the review was not “excessively intrusive” because the department reviewed only two months of Quon’s messages, and redacted all messages he sent while off-duty.
In analyzing Quon’s privacy interest, the Court stated that the “extent of an expectation is relevant to assessing whether the search was too intrusive.” Quon, according to the Court, would have been unreasonable to expect that “his messages were in all circumstances immune from scrutiny,” given the warnings of potential audits issued by his employer, and the likelihood of his actions coming under scrutiny in light of his status as a law enforcement officer. The Court further held that the search of Quon’s messages on a work-issued pager was not as intrusive as a search of his personal e-mail or pager or a wiretap of his personal phone would have been. The Court rejected the Ninth Circuit’s rationale that any Fourth Amendment search must be conducted in the least-intrusive manner, and noted that even if the wireless company violated the SCA by turning over the text transcript, this would not render the City’s search of messages unreasonable.
The Court’s decision, while specifically avoiding the announcement of a broad rule regarding employee’s privacy interests in work-provided technological devices in favor of a more case-by-case analysis, nonetheless emphasizes that employees should not expect complete privacy on employer-provided devices. It also provides a roadmap (albeit a hazy one) for employers to follow in conducting Constitutionally-permissible searches in records of such communications.
Published in Developments in Municipal Law Fall 2010 Newsletter.