Richard H. Lam is an associate with the law firm of Alvarez-Glasman & Colvin practicing in the fields of municipal law and civil litigation and can be reached at rlam@agclawfirm.com. Kyle D. Smith, a juris doctorate candidate currently enrolled at UCLA School of Law, also contributed to this article.

In a unanimous decision, the U.S. Supreme Court ruled that a public employee does not have a reasonable expectation of privacy in text messages sent from employer-issued communication devices. In City of Ontario v. Quon,¹ the U.S. Supreme Court defined the extent to which an employer can monitor and review text messages on pagers, cell phones, Blackberries and other communication devices. The opinion of the nine justices significantly narrows protection for worker privacy by expanding the rights of employers to monitor employee communications.

In Quon, the City of Ontario reviewed the text messages on a pager it had supplied to one of its employees. At issue in the case was whether the purpose and scope of this search violated the Fourth Amendment of the U.S. Constitution, which guards against unreasonable searches and seizures.

Background

The City of Ontario issued Police Sergeant Jeff Quon a wireless pager, capable of sending and receiving a limited number of text messages, to assist in mobilizing the city’s special weapons and tactics (SWAT) team. Ontario’s computer usage, Internet and e-mail policy prohibited personal use of the pager and notified employees that they have no expectation of privacy. The policy also stipulated that the city reserved the right to monitor without notice all of its network activity.²

Shortly after receiving the pager, Quon began exceeding the usage limits. His chief notified Quon about the overage and told him that although the pager’s use could be audited, if Quon paid the overage charges no usage audit would be conducted. When the overages continued the city requested a transcript of the text messages from the service provider to determine whether the usage limits were too low. After a review, the city determined that almost 400 personal text messages, many of them sexually explicit, had been sent or received during work hours by Quon in a single month. As a result Quon was disciplined.

Supreme Court Decision Focuses on Facts at Hand

In his subsequent lawsuit, Quon alleged that he had a reasonable expectation of privacy, the audit of his text messages was unreasonable and therefore violated his Fourth Amendment right to be free from unreasonable searches and seizures. The U.S. Supreme Court, in an opinion issued by Justice Kennedy, rejected Quon’s contentions and found that the audit was reasonable. The court emphasized that the pager messages were not considered private from the time the pagers were initially given to the employees.

Quon argued that because he was told by his chief that no audit would occur if he paid the costs of his overages he therefore had a reasonable expectation of privacy. The court noted, however, that because mobile devices are widely available, employees who need such devices for personal matters can purchase their own. In addition, Quon was aware of his department’s policies concerning communications.

In authoring the opinion, the court refused to make sweeping generalizations about the rights of employers to search devices used in employment.³ Justice Kennedy stated, “A broad holding concerning employees’ privacy expectations vis-à-vis employer-provided technological equipment might have implications for future cases that cannot be predicted. It is preferable to dispose of this case on narrower grounds.”⁴ The court limited its analysis to the facts at hand.

However, the court stated that the search was permissible — even assuming public employees such as Quon have a reasonable expectation of privacy in their text messages and that the review of the transcript constituted a search under the Fourth Amendment. The court found that the city had a legitimate work-related interest in ensuring its plan covered all work-related text messages but did not extend so far that the city was paying for numerous personal communications. The scope of the search was reasonable because the city requested transcripts for only two — rather than all — of the months that Quon had exceeded his limits. The reasonableness of the search was also furthered by the fact that before reviewing the messages, the city had redacted those Quon sent while off duty. Because the purpose and scope of the search were reasonable, the court held that Quon’s Fourth Amendment rights were not violated by the city’s search of his work-issued pager. At one point, the court went so far as to suggest that the decision would apply to all workers — public and private.

In the past, similar cases involved incriminating evidence stored by an employee on his or her workplace computer and whether employees have a reasonable expectation of privacy of that evidence.⁵ In Quon, however, there is no criminal investigation and the issue involves a much broader set of facts. This case therefore impacts a larger set of rights and liberties. While the court did not directly answer the broader question of whether public employees have an expectation of privacy in their text messages, this case substantially clarifies the manner in which public employers are able to search communications sent through work-issued electronic devices.

It remains to be seen whether the court’s ruling will lead to more lawsuits or a new round of appeals regarding what privacy limits are permissible in the workplace. For now, however, the ruling of the U.S. Supreme Court stands.

Footnotes:

[1] No. 08–1332 (U.S. June 17, 2010), rev’g by a unanimous Court Quon v. Arch Wireless Operating Co., 529 F.3d 892 (9th Cir. 2008)

[2] However, because text messages were sent outside of the city’s network, this policy did not on its face apply to text messages, but the city subsequently made clear to employees that text messages would be treated in a similar manner.

[3] The court refrained from deciding whether the senders of text messages to Quon’s pager had a reasonable expectation of privacy because the issue was not before the court.

[4] Quon, No. 08–1332 at 11-12.

[5] In those cases, employees were found not have a reasonable expectation of privacy for electronic communications at work. United States v. Simons, 206 F.3d 392, 398 (4th Cir. 2000). However in United States v. Ziegler,474 F.3d 1184 (9th Cir. 2007), the U.S. Court of Appeals for the Ninth Circuit held that an employee does have a right to privacy in his workplace computer. Nonetheless, the court found that the employer could consent to a government search of the computer without infringing on the Ziegler’s Fourth Amendment rights.

This article appears in the June 2010 issue of Western City
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