Supreme Court Addresses Privacy Rights in Employee Communications in City of Ontario v. Quon
Yesterday, the Supreme Court handed down its much anticipated opinion in City of Ontario, California v. Quon, No. 08-1332 (June 17, 2010). The opinion, however, provides little guidance as to whether individuals have a reasonable expectation of privacy in their text messages. Instead, the Court sidestepped that issue finding that even if such an expectation of privacy existed, the search at issue in this case was reasonable. In doing so, the Court expressed an unwillingness to decide such issues stating:
The Court must proceed with care when considering the whole concept of privacy expectations in communications made on electronic equipment owned by a government employer. The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear. . . . Prudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices.
The respondent in this case, Quon was an officer for the Ontario Police Department (“OPD”). The OPD issued its officers departmental pagers. When Quon and others began exceeding their monthly character limits for messages, the OPD requested message transcripts from its provider, Arch Wireless, to determine if they were work-related or personal messages. During its review of the messages, OPD discovered that Quon had used his pager to send sexually explicit messages. The OPD then disciplined Quon for sending those messages.
Quon (and a number of other individuals that exchanged the offending messages with Quon) filed suit alleging that the OPD had violated their Fourth Amendment Rights and the Stored Communications Act (SCA) by obtaining and reviewing these messages. On appeal, the Ninth Circuit held that Quon had a reasonable expectation of privacy in the text messages and the search was not reasonable. It also found that Arch Wireless had violated the SCA by providing the transcripts to the OPD. The SCA violation was committed when Arch Wireless disclosed the information to the city on the basis that the city was the subscriber to a remote computing service, when the Ninth Circuit found instead that the messages were in “electronic storage” in an electronic communication service and could not be disclosed to the city without Quon’s consent. The Supreme Court granted cert—but only on the Fourth Amendment question, leaving the Ninth Circuit’s SCA’s holding intact.
The Supreme Court reversed, but sidestepped, the issue of whether Quon had a reasonable expectation of privacy in his text messages. Instead, the Court found that existing precedent regarding employer searches of employee information resolved the issue. In doing so, the Court assumed arguendo that Quon had a reasonable expectation of privacy in the text messages, that the OPD’s review of the messages constituted a search, and the principles applicable to a government employer’s search of an employee’s physical office apply as well in the electronic sphere. Furthermore, the Court also declined to answer which of the opinions in O’Connor v. Ortega, 480 U. S. 709, 711 (1987) courts should employ when determining whether a search of an employee is reasonable, instead holding that under any of the three approaches, the search at issue in Quon was reasonable.
At the core of the holding was a finding that the OPD’s review of the text message transcripts was for a “noninvestigatory work-related purpose” because the OPD needed to conduct the review to determine if the City’s contractual character limit was large enough to meet the City’s needs, and that review of the transcripts to determine if the messages were work-related was a legitimate interest. Furthermore, the Court found that reviewing the records was not “excessively intrusive” because the OPD only reviewed the transcripts for two months and only those messages sent while Quon was on duty—not all of Quon’s communications. In doing so, the Court rejected the Ninth Circuit’s reasoning and found that a search need not be the least intrusive means in order to be reasonable. Additionally, without engaging in an in-depth analysis, the Court found that as an on-duty police officer, Quon likely had only a limited privacy expectation in messages sent using his employer-provided pager.