The Secure Times

An online forum of the ABA Section of Antitrust Law's Privacy and Information Security Committee

Supreme Court Addresses Privacy of Personal Text Messages on Pager Supplied by Employer

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The Supreme Court recently addressed the challenges created by workplace privacy for public employees in the electronic era.  The Court’s decision in City of Ontario v. Quon sidestepped the critical question of whether a government employee has a reasonable expectation of privacy in text messages transmitted on an employer-issued pager, leaving the proper test for a Fourth Amendment violation in this context unsettled.  But every member of the Court easily agreed that even assuming that a public employee has a reasonable expectation of privacy in such text messages, the City’s search in this instance did not violate the Fourth Amendment.

The Ontario Police Department (“OPD”) provided pagers to its officers for job-related use.  The OPD’s contract with Arch wireless allowed for a limited number of characters to be sent via text messages per month; additional characters would be subject to additional charges.  The OPD had a written policy providing that employees had no expectation of privacy with respect to emails written on employer-provided computers and warned that emails were subject to monitoring.  While the written policy did not explicitly cover text messages, the OPD informed officers that text messages would be treated the same as emails.  Soon after the pagers were distributed, Jeff Quon, a police sergeant in the OPD who had been issued a pager to assist his work on the OPD SWAT team, exceeded the character limits.  Quon’s supervisor reminded him that texts were subject to audit, but the supervisor indicated that he didn’t intend to audit texts for personal use, and instead would allow Quon and other employees with overages to pay for any monthly charges.  Quon and other employees paid for overages for a number of months after that, but the supervisor eventually tired of being a “bill collector.”  To determine whether the existing character limit on the pagers needed to be increased – both to ensure that employees were not being forced to pay for work-related texts and that the City avoided paying for personal communications – the City examined two month’s worth of Quon’s texts.  After redacting texts sent in his off-duty hours, the City determined that roughly seven-eighths of Quon’s on-duty texts were personal (some sexually explicit), which violated the City’s rule against pursuing personal matters while on-duty.  Quon was allegedly disciplined.


Quon, along with those with whom he had been exchanging texts, filed suit against the City, the OPD and others (collectively “the City”) for violating his Fourth Amendment right to privacy.  The district court applied a two-step test developed by a plurality of the Supreme Court in O’Conner v. Ortega (1987) to address Fourth Amendment claims in the employment context.  Under that test, a court first considers the operational realities of the workplace, on a case-by-case basis, to determine whether the employee has a reasonable expectation of privacy.  Only if there is a reasonable expectation of privacy would a court then go on to consider whether the employer’s intrusion was nonetheless reasonable.  Applying this test to Quon’s circumstances, the district court concluded that Quon had a reasonable expectation of privacy in his text messages.  The district court then asked the jury to determine whether the City had conducted the search to determine the efficacy of the character limit policy (reasonable in the court’s view) or to snoop into how Quon used his pager (unreasonable in the court’s view).  The jury concluded that the City performed the search for the former purpose, resulting in a win for the City.  But the victory did not last long.  On appeal, the Ninth Circuit found the City’s search unreasonable because there were less intrusive means of determining whether the character limits were appropriate. 


The Supreme Court reversed, in an opinion by Justice Kennedy.  The Court declined to endorse or overrule the O’Connor plurality’s test.  Acknowledging that the Court was avoiding the question of whether Quon’s expectation of privacy was justifiable, Kennedy noted that “prudence counsels caution” in the face of evolving technologies and changing workplace norms.  Kennedy explained that any rule the Court might fashion could not keep pace with the evolution of technology and practices for use of that technology in the workplace.  Nevertheless, the majority opinion offered some thoughts about the factors it might consider under the O’Connor test.


Kennedy then focused on the relatively narrow question of whether the search was reasonable. He first determined that the City’s search satisfied the O’Connor legitimacy standard – it was “conducted for a ‘noninvestigatory, work-related purpose[] or for the investigatio[n] of work related misconduct.’” Kennedy then concluded that the search was reasonable:  it was “efficient,” “expedient,” and not “excessively intrusive.”  Furthermore, because the City reasonably believed that Quon likely had only a limited privacy expectation (if any), the City had reasonably assumed that the search would not intrude on personal matters.  Kennedy swiftly dismissed the Ninth Circuit’s decision as at odds with controlling precedent in that the Fourth Amendment does not require the government to use the least intrusive means and such a hindsight-based approach would be unworkable as a court could nearly always be able to come up with a different approach it believes would have been better. 


Two Justices filed separate concurrences.  Justice Stevens concurred to remind readers that, in addition to the plurality and Scalia’s concurrence in O’Connor, Justice Blackmun’s O’Connor dissent—joined by Justices Brennan, Marshall, and Stevens – also provided an approach to determining an employee’s expectation of privacy, which he considered still viable.  Justice Scalia, on the other hand, lambasted the majority opinion for its “[t]he-times-they-are-a-changin’” discussion as an unnecessary.  Prophesying, with some merit, that lawyers and courts will focus on the discussion about the expectation of privacy in the majority’s opinion offered merely as guidance rather than acknowledge the narrow nature of that holding, Scalia also chided the Court for improperly buttressing the O’Connor plurality’s two-step analysis – with which he, of course, continues to disagree.

Author: ABA Antitrust

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