Text Message Search Did Not Violate Employee's Privacy Rights

Daily Journal

Reversing the 9th U.S. Circuit Court of Appeals, the U.S. Supreme Court unanimously held that the Ontario Police Department did not violate Jeff Quon's expectations of privacy when it reviewed the contents of his employer issued pager. City of Ontario v. Quon, No. 08-1332, (June 17, 2010).

Notably, the Supreme Court was concerned with using the facts of this case "to establish far-reaching premises that define the existence and extent of reasonable privacy expectations enjoyed by employees using employer-provided communication devises," and thus, chose to dispose of the case on substantially narrower grounds. To avoid this more far-reaching issue, the Supreme Court assumed arguendo that Quon had a reasonable privacy expectation in his text messages on his employer issued pager, the city's review of the transcripts of the text messages constituted a Fourth Amendment search, and the principles applicable to a government employer's search of an employee's physical office apply as well in the electronic sphere. To reach its decision, the Court only addressed whether the search was reasonable. The Court concluded that because the search was motivated by a legitimate work related purpose from its inception and not excessive in scope, the search was reasonable and did not violate Quon's Fourth Amendment rights.

In October 2001, the city acquired pagers capable of sending and receiving text messages, with service provided by Arch Wireless Operating Co. Each pager was allotted a limited number of characters sent or received each month. At the time of acquiring the pagers, the city already had in effect a computer policy that applied to all employees, which stated 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." Although the computer policy did not specifically address text messaging, the city advised employees that it would treat text messages the same way as it treated e-mails.

When Quon exceeded his monthly text message character allotment, his supervisor told him that "it was not his intent to audit [an] employee's text messages to see if the overage [was] due to work related transmissions," and Quon could reimburse the city for the overage fee rather than have his messages audited. Each time Quon exceeded his character limit, he reimbursed the city. Eventually the city became "tired of being a bill collector" and reviewed the transcripts of Quon's text messages to determine if the existing character limit was too low or if overages were for personal messages. The city reviewed transcripts of the text messages, made during Quon's work shifts. It found that many of Quon's messages were not work-related and some were sexually explicit. The results were turned over to internal affairs, and Quon was found in violation of the city's computer policy.

Quon, along with his wife, girlfriend, and a coworker (all senders of personal text messages to Quon) sued the city and Arch Wireless, claiming violations of their Fourth Amendment right of privacy, violations of their parallel privacy rights under the California Constitution, and violations of the federal Stored Communications Act by Arch Wireless for disclosing the content of the text messages without Quon's consent.

The District Court determined that Quon had a reasonable expectation of privacy in the content of his text messages but the audit of the text messages was nonetheless reasonable. Quon v. Arch Wireless Operating Co. Inc., 445 F.Supp.2d 1116 (C.D. Cal. 2006). The 9th Circuit reversed in part. The panel agreed with the District Court that Quon had a reasonable expectation of privacy in his text messages, but held that the scope of the city's review of the text messages was too intrusive and, thus, violated the Fourth Amendment. Quon v. Arch Wireless Operating Co. Inc., 529 F.3d 892 (2008). The 9th Circuit denied a petition for rehearing en banc. On Dec. 14, 2009, the Supreme Court granted the city's petition for certiorari.

The questions presented by the city's petition were whether Quon had a reasonable expectation of privacy in text messages transmitted on a city pager based on his supervisor's statements, which were contrary to the city's written policy, the city could have used a less-intrusive means of checking for pager misuse, and those who texted Quon had a reasonable expectation of privacy that their messages would not be read by the city. The Court's decision is based on the second issue.

The Supreme Court quickly dispensed with the first issue on the basis that it was preferable to dispose of the case on narrower grounds. The Court's reasoning was that addressing the first question would "bear on the legitimacy of any employee's privacy expectation;" since the Court assumed that Quon had a reasonable expectation of privacy, there was no need to elaborate "too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear." Justice John Paul Stevens applauded the Court for having declined to resolve whether the plurality opinion in O'Connor v. Ortega, 480 U.S. 709 (1987),provides the correct approach to determining an employee's reasonable expectation of privacy. On the other hand, Justice Antonin Scalia, concurring in part and in the judgment, underscored that the threshold inquiry should be not whether the Fourth Amendment applies to messages on public employees' employer-issued pagers but whether it applies in general to such messages on employer-issued pagers.

The Court did not have to address the third issue because this was predicated on a finding that the search was unreasonable. In holding that the search was reasonable, the issue became moot.

In regards to the reasonableness of the search, the Supreme Court recognized that the special needs of the workplace justify an exception to the general rule that warrantless searches are per se unreasonable under the Fourth Amendment, provided that the search 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 concluded that the search was reasonable because it was motivated by a legitimate work-related purpose (to ensure that employees were not being forced to pay out of their own pockets for work-related expenses and the city was not paying for extensive personal communications) and was reasonable in scope (limited to a review of two months of text messages). Notably, the Court also concluded that the search would be "regarded as reasonable and normal in the private-employer context." The Supreme Court also rejected the notion that for the search to be reasonable it must be the "least intrusive" and it was per se unreasonable because it might have violated

Quon only addressed the Fourth Amendment, which applies to public employers. However, Article I, Section 13 of the California Constitution applies to both public and private employers. Thus, California employers need to draft appropriate policies to avoid invasion of privacy lawsuits under both the Fourth Amendment and the California Constitution.

Although the Supreme Court assumed that a reasonable expectation of privacy existed and avoided addressing the city's conflicting formal and informal policies, it was this internal conflict that triggered the lawsuit by Quon and his fellow texters.

Quon is a reminder that employers must draft clear concise policies and ensure that these policies are uniformly implemented and applied. It is also incumbent upon employers to internally audit the workplace to ensure that managers are not establishing informal policies that contradict written policies. Likewise, well-written policies can establish when it would be unreasonable for an employee to have an expectation of privacy. As the Supreme Court noted, "operational realities" of the workplace may alter an employee's expectation of privacy. Thus, employers should confirm that their electronic communications policies conform to the realities of their workplace. Given the Court's reluctance to establish a bright line test because of the rapid changes in the dynamics of communication and technology, employers will need to be realistic about what will define workplace norms as to an employee's reasonable expectation of privacy.

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