©2010 Lou Reiter, Jack Ryan, J.D., Legal & Liability Risk Management Institute, (llrmi.com). U.S. Supreme Court, City of Ontario v. Quon, 560 U.S.___ Slip op. 08-1332 (2010), Decided June 17, 2010 (Download Decision pdf).

In October of 2001, the City of Ontario, California entered a contract with Arch Wireless for 20 alphanumeric pagers which were capable of sending and receiving messages.  Under the contract, the City had limits on the number of messages which could be sent or received.  These pagers were utilized by members of the SWAT team for purposes of mobilizing the team should the need arise.

One of these pagers was issued to Sergeant Jeff Quon.  It is noted that the agency had a computer/email policy which had been signed off on for receipt by Sergeant Quon.  The policy asserted, among other things, that the City “reserves the right to monitor and log all network activity including email and Internet use, with or without notice. Users should have no expectation of privacy or confidentiality when using these resources.”  Although this policy did not expressly apply to the pagers, the City made it clear to employees, including Sergeant Quon that the text messages were to be treated the same as emails.

During the first two billing cycles, Sergeant Quon exceeded the number of texts authorized for the flat fee under the contract.  Lieutenant Duke reminded Quon that the text messages were the same as email and could be audited.  Lieutenant Duke allowed Quon to pay for his monthly overages on text messages.  In doing so, he told Quon that it was not his intention to audit the text messages as long as Quon paid the overages.  Sergeant Quon continued to have overages on his text messaging and after several billing cycles, Lieutenant Duke told the Chief of Police, Chief Scharf, that he was tired of being a bill collector.  The chief then decided to investigate whether the current contract with Arch was sufficient with respect to the number of messages allowed.  The chief also asserted that he did not want officers to pay for overages if the text messages were work related.  The chief told Duke to get transcripts for text messages for the months of August and September so that the department could determine if they needed to amend the contract to allow for more messaging under a flat fee.

After receiving the transcripts of the messages, Duke reviewed them and determined that many of Sergeant Quon’s messages were not work related, though sent or received during work hours, and some were sexually explicit.  Duke reported his findings to the chief, who also reviewed the transcripts along with Quon’s direct supervisor.  The matter was then turned over to the department’s Internal Affairs Sergeant, Patrick McMahon.

Sergeant McMahon began his investigation by redacting all texts which were sent or received during Sergeant Quon’s off-duty time, thus limiting his review to on-duty texting.  The review revealed that Sergeant Quon sent 456 texts during the month of August while on duty.  Of these 456, no more than 57 were work related. The investigation revealed that during work time, Quon sent or received an average of 28 messages, 3 of which were work related.

Sergeant Quon as well as some of the people he was communicating with filed a lawsuit alleging that the department had violated their rights under the 4th Amendment and that Arch had violated their rights under the Federal Stored Communications Act by releasing the transcript.

In reviewing the case, the Court took a cautious approach due to the quickly developing communications technology as making it difficult to predict the future.  The Court asserted:

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. See, e.g., Olmstead v. United States, 277 U. S. 438 (1928), overruled by Katz v. United States, 389 U. S. 347, 353 (1967). In Katz, the Court relied on its own knowledge and experience to conclude that there is a reasonable expectation of privacy in a telephone booth. See id., at 360–361 (Harlan, J., concurring). It is not so clear that courts at present are on so sure a ground. 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.  Rapid changes in the dynamics of communication and information transmission are evident not just in the technology itself but in what society accepts as proper behavior… At present, it is uncertain how workplace norms, and the law’s treatment of them, will evolve…

Cell phone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self identification. That might strengthen the case for an expectation of privacy. On the other hand, the ubiquity of those devices has made them generally affordable, so one could counter that employees who need cell phones or similar devices for personal matters can purchase and pay for their own. And employer policies concerning communications will of course shape the reasonable expectations of their employees, especially to the extent that such policies are clearly communicated.

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. For present purposes we assume several propositions arguendo: First, Quon had a reasonable expectation of privacy in the text messages sent on the pager provided to him by the City; second, petitioners’ review of the transcript constituted a search within the meaning of the Fourth Amendment; and third, the principles applicable to a government employer’s search of an employee’s physical office apply with at least the same force when the employer intrudes on the employee’s privacy in the electronic sphere.

The Court then applied the special needs search analysis for workplaces which was first announced in O’Connor v. Ortega.i  In applying this analysis to the facts of this case the Court wrote:

Under the approach of the O’Connor plurality, when conducted for a “non investigatory, work-related purpos[e]”or for the “investigatio[n] of work-related misconduct,” a government employer’s warrantless search is reasonable if it is “‘justified at its inception’” and if “‘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. 480 U. S., at 725–  726. The search here satisfied the standard of the O’Connor plurality and was reasonable under that approach.

The search was justified at its inception because there were “reasonable grounds for suspecting that the search [was] necessary for a non investigatory work-related purpose.” Id., at 726. As a jury found, Chief Scharf ordered the search in order to determine whether the character limit on the City’s contract with Arch Wireless was sufficient to meet the City’s needs. This was, as the Ninth Circuit noted, a “legitimate work-related rationale.” 529
F. 3d, at 908. The City and OPD had a legitimate interest in ensuring that employees were not being forced to pay out of their own pockets for work-related expenses, or on the other hand that the City was not paying for extensive personal communications.

As for the scope of the search, 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 also not “‘excessively intrusive.’” O’Connor, supra, at 726 (plurality opinion). Although Quon had gone over his monthly allotment a number of times, OPD requested transcripts for only the months of August and September 2002. While it may have been reasonable as well for OPD to review transcripts of all the months in which Quon exceeded his allowance, it was certainly reasonable for OPD to review messages for just two months in order to obtain a large enough sample to decide whether the character limits were efficacious. And it is worth noting that during his internal affairs investigation, McMahon redacted all messages Quon sent while off duty, a measure which reduced the intrusiveness of any further review of the transcripts.

Furthermore, and again on the assumption that Quon had a reasonable expectation of privacy in the contents of his messages, the extent of an expectation is relevant to assessing whether the search was too intrusive. See Von Raab, supra, at 671; cf. Vernonia School Dist. 47J v. Acton, 515 U. S. 646, 654–657 (1995). Even if he could assume some level of privacy would inhere in his messages, it would not have been reasonable for Quon to conclude that his messages were in all circumstances immune from scrutiny. Quon was told that his messages were subject to auditing. As a law enforcement officer, he would or should have known that his actions were likely to come under legal scrutiny, and that this might entail an analysis of his on-the-job communications. Under the circumstances, a reasonable employee would be aware that sound management principles might require the audit of messages to determine whether the pager was being appropriately used. Given that the City issued the pagers to Quon and other SWAT Team members in order to help them more quickly respond to crises—and given that Quon had received no assurances of privacy—Quon could have anticipated that it might be necessary for the City to audit pager messages to assess the SWAT Team’s performance in particular emergency situations.

From OPD’s perspective, the fact that Quon likely had only a limited privacy expectation, with boundaries that we need not here explore, lessened the risk that the review would intrude on highly private details of Quon’s life. OPD’s audit of messages on Quon’s employer-provided pager was not nearly as intrusive as a search of his personal e-mail account or pager, or a wiretap on his home phone line, would have been. That the search did reveal intimate details of Quon’s life does not make it unreasonable, for under the circumstances a reasonable employer would not expect that such a review would intrude on such matters. The search was permissible in its scope.

Thus, the Court concluded that Sergeant Quon’s 4th Amendment rights were not violated by the Department’s review of his text messages.

 

IMPORTANT POINTS TO CONSIDER

  • A search conducted for a non-investigatory work related purpose or for work related misconduct will be reasonable without a warrant if:
    • the search is justified at its inception 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.
    • An express policy notifying employees of monitoring as well as expressly indicating that employees have no right to privacy or confidentiality with respect to resources provided by the agency such as phones, computers, pagers etc. will enhance the defensibility of any agency search.
 
    • Police departments must keep abreast of the changing media and communication devices.  The policies must be broad enough to cover all of these communication devices including cell phones, texting devices, cell phone video and photographic sources, social network sites, and personal computers.  Any device that an employee uses in relationship to his/her job, during the job, or at the station or in the police vehicle should be covered.
 
  • While this case dealt with the 4th Amendment and the expectation of privacy, the courts have also been fairly consistent that the content of speech and actions of police employees, particularly those sexual or derogatory in nature, must be above reproach.  The courts have held that any of these actions can bring discredit to the employee and the agency and can be reasonably controlled by the agency.  In many of these cases the courts didn’t even care whether the employment status of the officer was or could have been known to outside observers.  This case could have just as easily dealt with these 1st Amendment issues due to the sexually explicit messages that were uncovered in the review.

CITATIONS

i O’Connor v. Ortega, 480 U.S. 709 (1987).

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