Text Message Search Did Not Violate Employee’s Privacy Rights

Reversing the 9th Circuit Court of Appeals, the U. S. Supreme Court unanimously held that the City of Ontario Police Department (“City”) did not violate Jeff Quon’s expectations of privacy and decided the City could review the content of his employer issued pager.  City of Ontario v. Quon, No. 08-1332, slip op. at 7-17 (June 17, 2010).

The Supreme Court decided to avoid “any far-reaching premises that define the existence, and extent, of reasonable privacy expectations enjoyed by employees using employer-provided communication devises.”  Rather, the Supreme Court chose to dispose of the case on very narrower grounds.  The Supreme Court assumed (1) Quon had a reasonable privacy expectation in his text messages on his employer issued pager, (2) the City’s review of the transcripts of the text messages constituted a Fourth Amendment search, and (3) the principles applicable to a government employer’s search of an employee’s physical office apply as well in the electronic world.

The Court only addressed whether the search was reasonable.  The Court concluded the search was motivated by a legitimate work related purpose from its inception and not excessive in scope, therefore the search was reasonable and did not violate Quon’s Fourth Amendment rights

Facts

In October 2001, the City acquired pagers capable of sending and receiving text messages.  Arch Wireless Operating Company (“Arch Wireless”) provided wireless service for the pagers.  Each pager was allotted a set number of characters sent or received each month.  At the time of acquiring the pagers, there existed a Computer Usage, Internet and E-Mail Policy that applied to all employees and stated the City has a right to monitor all activity on any City owned equipment with or without notice.  The policy also reminded users they should have no expectation of privacy or confidentiality when using these resources. 

When Quon exceeded his monthly text message allotment, his supervisor told him that (1) “it was not his intent to audit [an] employee’s text messages to see if the overage [was] due to work related transmissions,” and (2) 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 the City reviewed the transcripts to determine if the character limit was too low or if overages were for personal messages. Many of the messages sent and received on Quon’s pager were not work related and some were sexually explicit.  The results were turned over to the City’s internal affairs office, and Quon was found to have violated the Computer Policy regarding the use of a city pager.

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 Court Cases

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.  The United States Ninth 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 transcript of the text messages was too intrusive and, thus, violated Quon’s Fourth Amendment right of privacy.  The Supreme Court granted the City’s petition for review and issued the opinion that the City’s review was permissible.

Issues

The questions the Supreme Court had to answer were whether (1) Quon had a reasonable expectation of privacy in text messages transmitted on a City pager based on his supervisor’s statements contrary to the City’s written policy, (2) the City could have used a less-intrusive means of checking for misuse of pagers, and (3) 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 question.

With respect to the first question, the Supreme Court decided to find a narrower way to dispose of the case, rather than tackle the question. The Supreme Court’s reasoning was that addressing the first question would “bear on the legitimacy of any employee’s privacy expectation” and given that it was assuming 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.”  The Supreme Court simply avoided addressing reasonable privacy expectations question when an employee uses electronic equipment owned by an employer.

Though not helpful to employers, the decision to avoid answering the first question is predictable.  The justices are not in sync as to the expectation of privacy an employee should have and the Supreme Court did not want to use this case to make that determination. 

With respect to the third question, it did not have to be addressed because it was predicated on a finding that the search was unreasonable.  Since the Court determined the search was reasonable there was no need to answer the third question.

Reasonableness of the Search

In deciding the search was reasonable, 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 (1) justified at its inception, and (2) 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 Supreme 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 payout of their own pockets for work-related expenses or 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 Supreme Court also concluded that the search would be “regarded as reasonable and normal in the private-employer context.”
The Supreme Court rejected the idea that for the search to be reasonable it must be the “least intrusive” and it was per se unreasonable because it might have violated a statute (in this instance, the federal Stored Communications Act).

Practical Tips

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.  As such California employers need to draft appropriate policies to avoid invasion of privacy lawsuits under both the United States and the California Constitution.

Likewise, other states have the right of privacy set out in the state’s constitution.  As such 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.

Well-written policies can establish when it would be unreasonable for an employee to have an expectation of privacy.  However, “operational realities” of the workplace may alter an employee’s expectation of privacy. Employers should confirm that their electronic communications policies conform to the realities of their workplace.
 
Stryker Slev is uniquely situated to assist employers in developing written policies covering electronic communications and conducting internal audits of the workplace to assess whether informal arrangements are contradicting written policies.