High Court Rules Government Employer’s Search of Text Messages Was Reasonable

On June 17, with Justice Anthony Kennedy writing a unanimously-supported opinion, the U.S. Supreme Court held that a police department’s search of an officer’s text messages was reasonable and did not violate the officer’s Fourth Amendment rights. The Court was reluctant to tackle the issue of whether the officer had a reasonable expectation of privacy – in light of “[r]apid changes in the dynamics of communication and information transmission.” Assuming that the officer did have a reasonable expectation of privacy in his text messages, the Court found that the search was motivated by a legitimate work-related purpose and was not excessive in scope. Thus, the Court held that the city’s review of the officer’s text messages was reasonable. City of Ontario v. Quon, No. 08–1332, U.S. Supreme Court (June 17, 2010).

Factual Background

Jeff Quon was a police sergeant with the Ontario Police Department (OPD). In 2001, the city of Ontario acquired 20 alphanumeric pagers capable of sending and receiving text messages and contracted with Arch Wireless Operating Company to provide wireless services. Under the agreement with the city, Arch charged an overage fee if messages exceeded 25,000 characters in a single month.

Before acquiring the pagers, the city adopted a “Computer Usage, Internet and E-mail Policy,” which was applicable to all employees. The policy set forth that the city “reserves the right to monitor and log all network activity including e-mail and Internet use, with or without notice.” The policy further stated that “users should have no expectation of privacy or confidentiality when using these resources” and that the use of inappropriate, derogatory, obscene, suggestive, defamatory, or harassing language in the e-mail system will not be tolerated. Although the policy did not specifically refer to text messaging, the city made clear to employees that it would treat text messages the same way as it treated e-mails and Lieutenant Steven Duke stated that text messages would be “eligible for auditing.” Quon signed a statement acknowledging that he had read and understood the city’s policy and Duke’s comments about text messages were put in a written memorandum, which was distributed to Quon and other personnel.

After Quon exceeded the 25,000-character limit, Duke reminded him that text messages were “considered e-mail and could be audited” but stated that “it was not his intent to audit [an] employee’s text messages to see if the overage [was] due to work related transmissions.” Instead, Duke suggested that Quon reimburse the city for overage fees. Quon agreed and regularly wrote a check for the overages. However, in an October 2002 meeting, Duke told OPD Chief Lloyd Scharf that he no longer wanted to be a “bill collector.” In an attempt to assess whether their character limit was too low, Scharf ordered Duke to obtain from Arch Wireless the transcripts of Quon’s last two months of messages to determine if the overages were for work-related or personal messages.

The transcripts revealed that many of the messages were personal in nature and that some were sexually explicit. Scharf referred the matter to internal affairs for an investigation into whether Quon was violating OPD rules by pursuing personal matters while on-duty. An internal affairs sergeant then eliminated any messages Quon sent while off-duty and reviewed only the content of the messages Quon sent during work hours. The internal affairs report noted that in August Quon sent or received 456 messages during work hours of which no more than 57 were work-related. The report concluded that Quon had violated OPD rules.

Quon filed suit in the U.S. District Court for the Central District of California claiming that the city, OPD, Scharf and Arch Wireless violated the Stored Communications Act (SCA) and his Fourth Amendment rights by turning over, obtaining and reviewing the transcripts of his pager messages. Quon argued that the privacy of the messages is protected by the ban on “unreasonable searches and seizures” found in the Fourth Amendment to the U.S. Constitution (made applicable to the states by the Due Process Clause of the Fourteenth Amendment).

The trial judge agreed that Quon had a reasonable expectation of privacy in the text messages, but held a jury trial to determine Scharf’s intent. The jury determined that Scharf’s investigation was to determine the efficacy of the character limit – not to determine whether Quon was wasting time while on-duty. Thus, that the search was reasonable.

Quon appealed to the Ninth Circuit Court of Appeals, which agreed with the trial judge that the employees had a reasonable expectation of privacy. However, the Ninth Circuit rejected the trial judge’s finding on the reasonableness of the search overall, stating that, while the purpose of the search was to verify the efficacy of the 25,000 character limit, the purpose of the investigation could have been achieved by less-intrusive means (i.e., warning Quon, asking him to count the characters himself, or asking him to redact personal messages and grant permission to the department to review the redacted transcript).

Legal Analysis

Justice Kennedy started his analysis cautiously, stating that “A broad holding concerning employees’ privacy expectations vis-à-vis employer-provided technological equipment might have implications for future cases that cannot be predicted.” Because “[t] he judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear,” the Court opted to “dispose of this case on narrower grounds.” As a result, the Court assumed that Quon had a reasonable expectation of privacy in the text messages, that the city’s review of the transcript constituted a search within the meaning of the Fourth Amendment, and that the principles applicable to a government employer’s search of an employee’s physical office apply to an electronic intrusion of privacy as well.

The Court then turned to the reasonableness of the search. Relying on the plurality opinion in O’Connor v. Ortega, the Court found that when conducted for a “noninvestigatory, work-related purpos[e]” or for the “investigatio[n] of work-related misconduct,” a government employer’s warrantless search is reasonable if: (1) it is “justified at its inception” and (2) 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.

Noting that Scharf initiated the search to determine whether Arch Wireless’ character limit was meeting the city’s needs, the Court concluded that the search was justified at its inception. The City and OPD had a legitimate interest in ensuring that officers were not paying for work-related expenses and alternatively that the city was not paying for officers’ personal communications.

The Court next found that reviewing Quon’s messages was an “efficient and expedient way” to determine if his overages were work-related or personal. The Court noted that the review was not “excessively intrusive” since it covered only two months of messages and was limited to on-duty messaging.

Moreover, given that Quon was told that his messages were subject to auditing, the Court concluded that it would not have been reasonable for Quon to assume that his messages were “in all circumstances immune from scrutiny.” Finally, the Court noted that the fact that the search revealed intimate details of Quon’s personal life did not render the search unreasonable. According to the Court, “under the circumstances a reasonable employer would not expect that such a review would intrude on such matters.” Thus, the Court concluded that the search was reasonable in scope.

The Court noted that the Ninth Circuit erred in finding the search unreasonable. According to Justice Kennedy, the Supreme Court has “repeatedly refused to declare that only the ‘least intrusive’ search practicable can be reasonable under the Fourth Amendment.” Finally, the Court rejected the argument that because Arch Wireless violated the SCA by turning over the messages, it follows that the search of the messages was unreasonable. According to the Court, “[t]he otherwise reasonable search by OPD is not rendered unreasonable by the assumption that Arch Wireless violated the SCA by turning over the transcripts.”

Thus, the Supreme Court held that the search was reasonable and the city did not violate Quon’s Fourth Amendment rights.

Practical Impact

According to a shareholder in Ogletree Deakins’ Orange County office: “The Court’s decision is all about common sense. Certainly, while government employers can rejoice in the Court’s decision upholding the government’s ability to undertake ‘reasonable’ searches, the next question is: what’s the practical application to the private employer? Future employee workplace privacy cases will no doubt look to this precedent and give it substantial weight.

“Private employers should carefully consider the Court’s analysis and common sense approach. They should apply it to their own circumstances, keeping in mind that where an employee has a legitimate, reasonable expectation of privacy, a private employer’s intrusion for work-related purposes, as well as for investigations of work-related misconduct, should, in the Court’s words ‘be judged by the standard of reasonableness under all the circumstances.’

“That being said, a private employer must take into consideration any additional privacy protections that individual states have to offer, balancing state privacy guarantees against the reasonableness of the private employer’s search and its purpose.”