Yesterday the Supreme Court ruled that the Ontario, California Police Department acted reasonably in reading employee text messages to determine if City pagers were being used primarily for work purposes. The unanimous decision, in Quon v. City of Ontario, will have implications for the privacy rights of both public and private employees.
The City purchased pagers capable of sending and receiving text messages and a data plan that permitted each pager to send or receive a finite number of characters per month, with overage charges for additional messaging. The city’s privacy policy stated “[u]sers should have no expectation of privacy or confidentiality” in network activity such as internet and e-mail use. Though the policy did not explicitly cover the pagers, the Police Department orally represented at a meeting (which plaintiff Jeff Quon attended) that the policy applied to the pagers.
After one or two billing cycles indicated that some officers, including Quon, were exceeding their character limits, a Police Lieutenant told Quon and other officers that the Department would not audit (i.e. read) the messages to determine if they were work-related if the officers’ personally paid their overage fees. Later, after the lieutenant “had become tired of being a bill collector,” the Chief of Police decided to determine whether the character limit was too low for official business, or whether the overages were the result of personal use. To do that, the Chief ordered a review of two months in which Quon and another officer had overages to determine the reason for those overages. Ultimately, a Department report found that of the 456 messages Quon send during work hours in August 2002, only 57 were work-related. In fact, many turned out to be sexually explicit communications made to his now ex-wife and a female officer with whom Quon had been having an affair.
Quon and others sued the Department, among others, alleging the search violated his reasonable expectation of privacy in the text messages protected by Fourth Amendment. After a jury trial, the federal trial court found no violation of Quon’s Fourth Amendment rights, noting that the jury had found the purpose of the search was not to investigate Quon, but rather to evaluate Department policy (i.e. whether the character limit was too low). As we have previously blogged, the 9th Circuit Court of Appeals reversed the trial court’s decision, holding that Quon had a reasonable expectation of privacy, and there were “a host of simple ways” to conduct a less intrusive audit, “such as warning Quon at the beginning of the month that his future messages would be audited, or asking Quon himself to redact the transcript of his messages.”
In a unanimous opinion, the Supreme Court reversed the 9th Circuit, holding that the circuit court’s opinion suffered from “analytic errors,” and that the search did not violate Quon’s Fourth Amendment rights. Noting that it has “repeatedly refused to declare that only the least intrusive search practicable can be reasonable under the Fourth Amendment,” the Supreme Court found the search to be reasonable, given the Department’s legitimate business purpose in conducting the audit and its attempts to redact from review messages sent by Quon while off duty.
Perhaps even more anticipated than the ultimate outcome of the case (the Ninth Circuit is frequently reversed) was whether the Court would use the opportunity to erase confusion about its precedents on workplace privacy for public employees, and update previous holdings for the information age. This question was answered, disappointingly many will feel, in the first sentence of Justice Kennedy’s opinion for the Court, which states that “[t]hough the case touches issues of far-reaching significance, the Court concludes it can be resolved by settled principles determining when a search is reasonable.” Justice Scalia, concurring in the judgment, chastised the Court for refusing to tackle the need to revise legal standards in light of emerging technologies.
Although the Quon court vindicated the City’s search, most employers—public or private—would prefer to avoid a trial, followed by two rounds of appellate practice ending at the Supreme Court. Simple, common sense procedures by Police Department management may have prevented the litigation from occurring in the first place. Had the Department updated its written communications policy to include pager transmissions, disseminated that policy to officers, and enforced its written policy in a consistent manner, the lawsuit may have been averted. Consistent enforcement of disseminated written policies is the best defense to an employee’s claim that he or she had expectations that differed from that policy. While Quon may be interesting reading for lawyers, avoiding Quon-type litigation is certainly more interesting for employers.
This entry was submitted by Stephen Coppolo, a member of the Firm’s Employment Counseling and Litigation Practice Group, and Samantha Yanco, a summer associate with Nelson, Kinder, Mosseau & Saturley.
Tags: fourth amendment, pager, police officer, quon, scalia, supreme court
