Supreme Court Provides Slightly More Guidance On The Extent Of A Public Employer’s Ability To Review Employee Text Messages

Supreme Court Provides Slightly More Guidance On The Extent Of A Public Employer’s Ability To Review Employee Text Messages

The Supreme Court of the United States gave its latest pronouncement on the limits of Fourth Amendment protection for public employees in City of Ontario v. Quon, No. 08-1332 (Slip Op. June 17, 2010). The Court ultimately held that because the search in Quon was motivated by a legitimate work-related purpose, and because it was not excessive in scope, it was reasonable under the Fourth Amendment.

Jeff Quon was a member of the City of Ontario (“City”) Police Department’s SWAT team. In October 2001, the City purchased pagers capable of sending and receiving text messages for its SWAT team members. Arch Wireless provided wireless service for the pagers. Under the contract with Arch Wireless, each pager had a maximum usage limit per month, and any overages incurred additional fees. Before acquiring the pagers, the City already had in place a “Computer Usage, Internet and E-mail Policy,” which essentially stated that the City reserved the right to monitor all e-mail and internet usage with or without notice. After the issuance of the pagers, SWAT team members were advised orally, then in a written memorandum, that text messages sent over the pagers were considered e-mails by the department.

Within the first or second billing cycle after handing out the pagers, Quon exceeded his monthly text message character allotment. He was reminded of the limit and that texts could be audited. Quon continued to go over the text character limit. Lieutenant Duke, the officer in charge of the contract with Arch Wireless, told Quon it was okay, so long as he paid for the overage. Quon paid, and continued to do so for the overage he incurred each and every month. When Quon continued to go over his monthly character limit, the police chief queried whether the existing character limit was too low—that is, were officers such as Quon having to pay fees for sending work-related messages—or if the overages were for personal messages. The chief and Duke obtained transcripts of Quon’s messages from Arch Wireless for two selected months. Upon review, they determined that many of the messages Quon sent and received were not work-related, and some were sexually explicit. They handed the matter over to the internal affairs department for further investigation. The internal affairs investigator redacted all texts sent while Quon was off duty. However, the investigation still revealed that Quon used the pager while on duty for personal texts. (For example, during work hours in the month of August 2002, Quon sent or received 456 messages, of which no more than 57 were work-related.) The police department disciplined Quon.

Quon sued, alleging violations of 42 U.S.C. §1983, the Stored Communications Act, and California law. Before the Supreme Court were the issues of whether Quon had a reasonable expectation of privacy in the text messages, and if so, whether the police department’s review of the text messages was a reasonable search under the Fourth Amendment of the Constitution. The Court analyzed Quon’s claims under the analysis established in O’Connor v. Ortega, 480 U.S. 709 (1987). The parties disagreed on whether Quon had a reasonable expectation of privacy in the text messages. The City had an e-mail and internet policy stating that all e-mails and internet usage was subject to monitoring and issued a separate memorandum including text messages with e-mails for purposes of the policy. However, Quon argued that the policy was changed when Duke allowed Quon to pay for overages. The Court hesitated in deciding once and for all whether Quon had a reasonable expectation of privacy in his text messages, citing its reluctance to define privacy expectations: “[a] broad holding concerning employees’ privacy expectations vis-à-vis employer-provided technological equipment might have implications for future cases that cannot be predicted.” For purposes of its analysis, the Court chose to assume Quon had a reasonable privacy expectation in the text messages, and focused instead on whether the search of those messages was reasonable.

The Court determined that the police department had a “legitimate work-related rationale” for looking at Quon’s text messages. Further “reviewing the transcripts was reasonable because it was an efficient and expedient way to determine whether Quon’s overages were the result of work-related messaging or personal use.” The review was not “excessively intrusive,” and only included a sampling of months, not all in which Quon had gone over the limit. Moreover, the internal affairs investigation only looked at texts sent and received during work hours, and excluded from its analysis any off-duty texts. Finally, because Quon was a law enforcement officer, he should have known that his communications may at some point in time come under legal scrutiny. The Court afforded no deference to the Ninth Circuit Court of Appeals’ finding that there were other, more “simple” ways to verify whether the text character limit was too low without looking at Quon’s messages, deeming this approach to be a “post hoc evaluation.” Accordingly, the Court found the search of Quon’s messages to be reasonable.

The take-away from the Quon opinion is that changing employer-provided technology will have to be evaluated at each instance in terms of whether it creates a “reasonable expectation of privacy” for an employee. However, Quon, as a public employee, had a heightened expectation of privacy compared to private employees, and his texts were still reasonably searched. Employers are reminded to have in place comprehensive communications policies, reserving the right to search, retain and review all communications over employer-provided technology, be it e-mail, text messaging or internet usage. As the Court noted in Quon, some States have passed laws requiring employers to notify employees when monitoring their electronic communication. (citing Del. Code Ann., Tit. 19, § 705 (2005); Conn. Gen. Stat. Ann. §31-48d (West 2003)).