In a landmark decision, the United States Supreme Court recently ruled in Ontario v. Quon that a public employer has the right to conduct a search of an employee’s text messages where the search is “motivated by a legitimate work-related purposes, and . . . [is] not excessive in scope.” Of interest to private employers, in reaching its determination, the Court also recognized that the search conducted by the public employer in this case would have been “regarded as reasonable and normal in the private-employer context.” Plaintiff Jeff Quon served as a police sergeant and member of the SWAT Team for the City of Ontario, California. In 2001, the City instituted a written “Computer Usage, Internet and E-mail Policy,” which provided 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.” The policy made no reference to monitoring of pager use. Quon acknowledged in writing that he had received and reviewed the new policy.
In October 2001, the City acquired 20 pagers with text messaging capabilities and distributed them to Quon and his fellow SWAT Team members. Under a contract between the City and provider Arch Wireless, each pager could send and receive a certain number of characters each month at a flat rate, but an additional fee would apply to characters over each pager’s set limit. In a staff meeting which Quon attended, and in a follow up memorandum, Lieutenant Steven Duke informed Quon and others that messages sent and received on City-provided pagers would be “considered e-mail messages” and were “eligible for auditing.”
Quon’s pager use regularly exceeded the maximum character limit, incurring additional charges to the City. At first, the City handled overages by allowing Quon to pay for them out of pocket. However, after time, the City tired of playing bill collector. In order to determine whether Quon and others legitimately required a higher character limit each month, the City decided to audit Quon’s statements to determine how many of his messages were truly work-related. The City obtained records from Arch Wireless for a 2-month period, and redacted all records of activity beyond Quon’s working hours. Then, auditing the messages sent during working hours, the City determined Quon was primarily using the pager to send personal, often sexually explicit, messages. For example, “Quon sent 456 messages during work hours in the month of August 2002, of which no more than 57 were work related.”
Quon filed suit, alleging the City violated his Fourth Amendment rights by reviewing his messages without consent. The trial court ruled that Quon had a reasonable expectation of privacy in his text messages, but that the City had not violated Quon’s rights because it limited its audit to a search intended to determine whether its set character limit was sufficient for Quon and his colleagues. On appeal, the Ninth Circuit Court of Appeals reversed in part, agreeing that Quon had a reasonable expectation of privacy, but concluding that the search was unreasonable in scope.
On further appeal, the United States Supreme Court reversed the Ninth Circuit. The Court started with the basic premise that public employees “do not lose Fourth Amendment rights merely because they work for the government instead of a private employer.” The threshold issue for public employees is whether they have a reasonable expectation of privacy, a determination made on a case-by-case basis. Where an employee has a reasonable expectation of privacy, the public employer’s intrusion for work-related purposes is judged by a standard of reasonableness under the circumstances.
The Court strongly suggested that Quon had no reasonable expectation of privacy under the circumstances, pointing to the written Computer Usage policy, as well as the Lieutenant’s oral and written extension of that policy to text messages. However, the Court attempted to shy away from the issue, and ostensibly assumed for purposes of argument that Quon had a reasonable expectation of privacy in the text messages. Nonetheless, the Court held, the City’s investigation was lawful because the search was justified at its inception by a legitimate, work-related rationale: The City’s need to avoid paying for its employees’ extensive personal communications. The Court also found the scope of the City’s search reasonable, as the City restricted its search to a two-month period, during working hours. Even assuming Quon had some reasonable expectation of privacy, “[i]t would not have been reasonable for Quon to conclude that his messages were in all circumstances immune from scrutiny.” Accordingly, the Court reversed the Ninth Circuit, finding no violation of the Fourth Amendment in light of the City’s reasonable search, thereby destroying Quon’s Fourth Amendment claim.
The full opinion may be found at http://www.supremecourt.gov/opinions/09pdf/08-1332.pdf.
