This year, the Supreme Court will examine a number of complex and potentially important issues concerning employees' Fourth Amendment privacy rights in messages sent and received using employer-issued digital communications equipment and the employer's rights to conduct searches of related records for reasonable purposes. By taking review of the Ninth Circuit's decision in Quon v. Arch Wireless Operating Co., Inc., 529 F.3d 892 (9th Cir. 2008), the court has an opportunity to clarify the workplace search rules addressed two decades ago in O'Connor v. Ortega, 480 U.S. 709 (1987), and bring its Fourth Amendment teaching into the digital age (Sup. Ct. Dkt. No. 08-1332, review granted Dec. 14. 2009). Employers and employees both will want to keep an eye on this one.

Factual Background

The Quon case arises from personal use of text message pagers issued to members of the Ontario, California police SWAT team in 2001. The city then had a formal written policy against personal use of city computers and email, which policy included an express provision declaring that employees should have no expectation of privacy in using such facilities. The police officers were told that policy applied to the pagers. However, Lieutenant Steve Duke, who was in charge of the pager program, adopted an unwritten policy under which he agreed not to audit use of a pager if the responsible SWAT team member agreed to and did pay any excess charges that resulted from total usage exceeding the 25,000-character monthly ceiling per pager under the city's contract with Arch Wireless, the service provider.

That policy was followed for some eight months, and Sergeant Jeff Quon, on multiple occasions, exceeded the 25,000-character monthly ceiling, was asked to pay the resulting overage charges and did so. Then Lieutenant Duke reported he was tired of being a bill collector, and his superior initiated a study to determine whether the overages were due to excessive personal use or whether the 25,000-character limit under the service contract simply was inadequate to meet SWAT team needs. The accounts selected for analysis included Sergeant Quon's. The city did not have records that would permit such an audit, but it requested and obtained a message transcript from Arch Wireless. Subsequent police department review of the transcript revealed that Sergeant Quon had exchanged numerous personal messages with his wife and his girlfriend (both of whom had police department jobs) and to another SWAT team member, Sergeant Trujillo. It further appeared that some of the messages contained "sexually explicit" material.

Prior Proceedings

Those revelations became known to Sergeant Quon, his wife, the girlfriend and Sergeant Trujillo, who together filed a civil rights action under 42 U.S. § 1983 alleging that the city and police officials had violated their Fourth Amendment rights against unreasonable searches. They also alleged Arch Wireless had violated the federal Stored Communications Act (18 U.S.C. § 2702) by disclosing the transcript of their text messages to the police department.

The district court conducted a jury trial in which the jury determined that the purpose of the department's search was to evaluate the adequacy of the 25,000-character limit (rather than to investigate Sergeant Quon's conduct). In that context, U.S. District Judge Stephen Larson granted judgment as a matter of law in favor of the defendants, finding that although the plaintiffs had a reasonable expectation of privacy in their text messages, the search conducted was reasonable and that there had been no violation of the Stored Communications Act. Both rulings were appealed to the Ninth Circuit. The appeal was heard by a panel consisting of Circuit Judges Harry Pregerson and Kim McLane Wardlaw, together with District Judge Ronald B. Leighton, sitting by designation. The panel's unanimous decision was reported in an opinion by Judge Wardlaw.

The Ninth Circuit panel first considered the Stored Communications Act claims against Arch. It found that Arch, as provider of the text messaging service, was prohibited from knowingly divulging the "contents of a communication while in electronic storage" other than to "an addressee or intended recipient of such communications." Because the intended recipients had not consented and Arch had knowingly divulged to the Ontario police department the contents of the text messages held in its electronic storage, the Ninth Circuit, reversing the district court, ruled that judgment should be entered in favor of the plaintiffs against Arch "as a matter of law."

O'Connor v. Ortega

In reviewing the Fourth Amendment claims, the Court of Appeals purported to apply the U.S. Supreme Court's 1987 decision in O'Connor v. Ortega, a fragmented and rather murky 5-to-4 decision. Dr. Ortega, the chief of professional education at Napa State Hospital, had been suspected of coercing residents to contribute to the purchase of a computer, sexually harassing two female hospital employees and taking inappropriate disciplinary action against a resident. While he was on administrative leave pending a proceeding that resulted in termination, an ad hoc investigative team of hospital employees searched Dr. Ortega's office, desk and files, locating some documents later used against Dr. Ortega in the termination proceeding.

Dr. Ortega sued the hospital under Section 1983 for violating his Fourth Amendment rights. The district court granted summary judgment for the hospital, but the Ninth Circuit reversed, holding that the warrantless search, as a matter of law, violated Dr. Ortega's rights. In the Supreme Court, the four dissenting justices essentially agreed with the Court of Appeals. A four-judge plurality concluded that Dr. Ortega had a reasonable expectation of privacy, but that a search could still be reasonable in the absence of probable cause and a warrant. The plurality determined the case should be remanded for consideration of whether the hospital was "reasonable" in initiating a search and whether the type of search that was conducted was "reasonable." That plurality became part of the Supreme Court majority because the remaining justice voted for reversal on the ground that all "searches of the sort that are regarded as reasonable and normal in the private employer context" do not violate the Fourth Amendment.

Quon Fourth Amendment Analysis

In the context of such uncertain Supreme Court "guidance," the Quon Ninth Circuit panel first found that the four plaintiffs had a reasonable expectation of privacy in their text messages and, consequently, enjoyed protection from unreasonable searches. Like the district court, the panel found that the informal policy established by Lieutenant Duke was controlling (not the city's formal no-privacy-in-emails policy) and that "the Department's informal policy that the text messages would not be audited if he paid the overages rendered Quon's expectation of privacy in the messages reasonable."

Turning to the reasonableness of the police department's search, the panel considered first whether it was reasonable to conduct a search to determine if the 25,000-character limit was adequate to meet SWAT team needs, and like the district court, found this to be a "legitimate work related rationale" for the search.

It then examined the "scope" of the search, applying the O'Connor standard under which a search is reasonable "when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive." The panel, differing with the district court, concluded the search was "excessively intrusive" because there "were a host of simple ways to verify the efficacy of the 25,000-character limit" without "intruding" on plaintiffs' Fourth Amendment rights, including forbidding Quon "from using his pager for personal communications" for a month and checking the results, or it "could have asked Quon to count the characters himself," or it could have asked Quon "to redact personal messages and grant permission to the Department to review the redacted transcript." Accordingly, the Ninth Circuit panel ruled that the plaintiffs prevailed on their Fourth Amendment claims "as a matter of law" and remanded the case to the district court to consider damages.

After the Panel Decision

The losing parties, supported by amici curae, thereafter petitioned for en banc review by the Ninth Circuit, which was denied. However, seven Ninth Circuit judges dissented from that denial of further review and published an extensive opinion criticizing the panel decision (554 F.3d 769, 774). They objected to basing a finding of reasonable expectation of privacy on Lieutenant Duke's informal policy (rather than the generally applicable no-privacy written statement) and criticized the panel for using "a least restrictive means test" in assessing the scope of the search. The dissenters argued that this violated Supreme Court rulings that Fourth Amendment analysis must be based on the reasonableness of what was done, not what theoretically could have been done. Judge Wardlaw, the author of the panel opinion, wrote an opinion "concurring" in the denial that accused the dissenters of misstating the record and denied using a "least intrusive means" test.

After en banc review was denied, the Ontario parties petitioned for review by the U.S. Supreme Court, and, subsequently, Arch Wireless did also. The Ontario petitioners focused on the differences between the panel opinion and the views of the seven en banc dissenters to argue that there was a conflict between the Ninth Circuit and other circuits on the Fourth Amendment issues and the application of O'Connor. The Supreme Court denied the Arch Wireless petition, but, on December 14, granted review to the Ontario parties. Briefing and a decision are expected during the first half of 2010.

Expected Supreme Court Issues

The Quon case presents a rare and potentially important opportunity to clarify O'Connor and accommodate its search rules to the digital age. In the more than two decades since O'Connor was decided, there has been considerable change in the membership of the Court, with only Justices Stevens and Scalia among the presently sitting justices to have participated in O'Connor. Justice Scalia was the fifth justice in the O'Connor majority, but he was critical of the plurality opinion (penned by Justice O'Connor) and deemed its conclusions to burden unduly searches of employees' work spaces by employer representatives. Justice Stevens joined in Justice Blackmun's dissenting opinion, which argued that the search of Dr. Ortega's effects was unreasonable because it was conducted without the employer's first securing a search warrant based on probable cause.

Ontario's petition for review flagged three groups of issues. First, the petitioners challenge the ruling that Quon had a reasonable expectation of privacy based on Lieutenant Duke's informal pager policy. They apparently will contend that the Supreme Court should give controlling weight to formal employer policies stating that employees have no privacy rights in communications made using the employer's facilities. Perhaps the Supreme Court will free employers from such employee suits by holding that where no-privacy policies are in place, no reasonable expectation of privacy can exist. The plaintiffs will support the Ninth Circuit and district court view, under which the actual operation of the workplace can be found to create expectations of privacy that override boilerplate statements buried in office manuals. They presumably will argue that, in today's world, it is impractical to separate completely communications arising in one's job from those in one's personal life. That clearly was so here, where, in Judge Wardlaw's words, SWAT team members "were required to be on call '24/7'". However, the risk of being "Blackberried" outside of office hours applies to many other types of workers, as well. How the Supreme Court resolves such conflicts will be of direct future importance to federal, state and local government employers, but may well have significant implications for private employers also.

A second and related issue concerns whether persons not employees in a government workplace can have a reasonable expectation of privacy in text messages sent to a government employee. Here, Sergeant Quon's wife and girlfriend arguably were in that position. Their brief opposing Supreme Court review asserted that their expectation "was based on Lieutenant Duke's informal policy," which suggests that they knew of the policy and fairly could rely on it. Where the Court draws the lines on such expectations by persons not in possession of the employer's equipment also could prove to be of broad importance.

Third is the question of what a reviewing court may consider in determining if a search is "reasonable" in scope within the meaning of O'Connor. Here, the Ninth Circuit appears to have relied on alternative ways the police department could have obtained information on the number of characters Sergeant Quon used for SWAT business purposes. The defendants, and the en banc dissenters, criticize such reliance as contrary to prior Fourth Amendment decisions. At the time the O'Connor plurality's standard was announced, Justice Scalia faulted it as "a standard so devoid of content that it produces rather than eliminates uncertainty in the field." Mitigating such problems would seem to call for clarification of what a court may consider when measuring reasonableness. Employers obviously would be assisted by such a clarification.

In considering what was done here (as opposed to hypothetical alternatives), the Supreme Court will not have before it the question of whether the Stored Communications Act was violated (having declined review of that question) and presumably must assume that the police department's search depended critically on the city's inducing Arch Wireless to violate that Act by providing the pager message transcript needed for its search. That would raise the question of whether a search can be reasonable if it depends on the employer's causing a violation of a federal criminal statute.

Obviously, it is much too early to assess fully what will be argued or how the Supreme Court will resolve the matter, but this case presents a potentially important opportunity for the Court to clarify employee privacy rules in the digital age.