“What are the legal boundaries of an employee’s privacy in this interconnected, electronic communication age, one in which thoughts and ideas that would have been spoken personally and privately in ages past are now instantly text-messaged to friends and family via hand-held, computerassisted electronic devices?”

So begins the trial court’s framing of the issues in its opinion, Quon v. Arch Wireless Operating Company, Inc., 445 F.Supp.2d 1116 (C.D. Cal. 2006), aff’d in part, rev’d in part by Quon v. Arch Wireless Operating Co., Inc., 529 F.3d 892 (9th Cir. Cal. 2008) (rehearing denied 554 F.3d 769 (9th Cir. 2009)). Writ of certiorari granted: City of Ontario v. Quon et al. U.S. No. 08-1332 (12/14/09). While the Ninth Circuit ruled in favor of the plaintiff and found that the Ontario Police Department had violated Sgt. Quon’s Fourth Amendment rights by reviewing the content of his department-issued text pager, its panel opinion similarly notes that the “extent to which the Fourth Amendment provides protection for the contents of electronic communication in the Internet Age is an open question.” 529 F.3d at 904.

The issue of an individual’s electronic privacy rights vis-à-vis intrusions by the government in its role as a law enforcement agent has been previously addressed. In granting certiorari, however, the Supreme Court’s focus is on the rights and responsibilities of the Ontario Police Department as government employer. What is a plaintiff/employee’s expectation of privacy in the use of employerissued electronic communication devices and how should the Fourth Amendment apply to the unique facts in Quon? Now that the U.S. Supreme Court has decided to hear the case, the balance between the rights of government employers to manage their workplace on the one hand, and an employee’s electronic privacy rights on the other, will be recalibrated to meet the “operational realities” of our ever evolving electronic communication age.

In order to prove a Fourth Amendment violation, Quon must show he had a reasonable expectation of privacy in his text messages and that the government’s search was unreasonable under the circumstances. A public employee’s expectation of privacy is judged against the “operational realities of the workplace” in which the employee works. Under a Fourth Amendment analysis, the reasonableness of an expectation of privacy is understood to differ according to context. An explication of the facts is thus in order.

Quon’s Factual and Procedural Background

In October of 2001, the Ontario Police Department contracted with Arch Wireless Operating Company, Inc. to provide two-way alphanumeric “text messaging” pagers for several of its S.W.A.T. officers, including the plaintiff, Sergeant Quon. As part of the contract, the city of Ontario paid a monthly subscription rate, tied to each pager, for an allotted 25,000 characters of use per month. Previously, the Ontario Police Department issued a “Computer Usage, Internet and E-mail Policy” to its employees, including the plaintiffs, which provided notice that the city reserved the right to monitor and log all network activity, and that access to the Internet and e-mail system was not confidential. Moreover, the employees, including the plaintiffs, executed an acknowledgement form to that effect.

Unfortunately for the employer, an informal policy was instituted by one of the Ontario Police Department’s lieutenants (Lt. Steve Duke). The informal policy was as follows: If an officer exceeded the contractual monthly character limit, then the content of his or her text messages would not be audited, provided that he or she paid any overage charges. Notwithstanding this informal policy, and notwithstanding that Sgt. Quon had paid his overages, the police department initiated an audit of Sergeant Quon’s text message usage and conducted a subsequent investigation on Sergeant Quon in connection with his pager usage, which had exceeded the monthly character limit. During the course of the initial review, and upon request by the city, Arch Wireless turned over transcripts of the content of Sergeant Quon’s text messages to the Ontario Police Department. The request was not accompanied by a subpoena or court order. Several inappropriate text messages were found on Sergeant Quon’s transcripts. Sergeant Quon, along with other plaintiffs, filed a lawsuit against Arch Wireless, the city, the police department and Chief Scharf. The lawsuit alleged that in releasing and reviewing the content of the text messages, the defendants had violated the plaintiffs’ Fourth Amendment rights, and their right to privacy pursuant to the California Constitution and the Stored Communications Act (SCA) 18 U.S.C. § 2701-2711, among other claims.1

With respect to the Fourth Amendment claims, the trial court found that if the purpose of the audit was to determine if Quon was using his pager to “play games” and “waste time,” then the audit violated the Fourth Amendment rights of Quon. If the purpose of the audit was to determine the efficacy of the existing character limits, the court would find that no constitutional violation occurred. The jury found Chief Scharf’s purpose was to determine the efficacy of the existing character limits, rendering a verdict in favor of the defendants. Significantly, the trial court judge found that in light of the Ontario Police Department’s informal policy, Quon’s expectation of privacy was reasonable. The plaintiffs appealed to the Ninth Circuit, which upheld the district court’s finding as to the reasonable expectation of privacy. The court also found the search was not reasonable in scope given the noninvestigatory nature of the search at its inception. The city filed a petition for re-hearing en banc, which was denied.

The Supreme Court Grants Certiorari

A petition for writ of certiorari was filed and subsequently granted on December 14, 2009. The Court framed the issues it will address as follows:

While individuals do not lose Fourth Amendment rights merely because they work for the government, some expectations of privacy held by government employees may be unreasonable due to the “operational realities of the workplace.” O’Connor v. Ortega, 480 U.S. 709, 717 (1987) (plurality). Even if there exists a reasonable expectation of privacy, a warrantless search by a government employer — for non-investigatory work-related purposes or for investigations of work-related misconduct — is permissible if reasonable under the circumstances. Id. at 725-26 (plurality). The questions presented are:  

  1. Whether a S.W.A.T. team member has a reasonable expectation of privacy in text messages transmitted on his S.W.A.T. pager, where the police department has an official no-privacy policy but a non-policymaking lieutenant announced an informal policy of allowing some personal use of pagers.  
  2. Whether the Ninth Circuit contravened this Court’s Fourth Amendment precedents and created a circuit conflict by analyzing whether the police department could have used ”less intrusive methods” of reviewing text messages transmitted by a S.W.A.T. team member on his S.W.A.T. pager.  
  3. Whether individuals who send text messages to a S.W.A.T. team member’s S.W.A.T. pager have a reasonable expectation that their messages will be free from review by the recipient’s government employer.  

Was There a Reasonable Expectation of Privacy?

This first issue is designed to clarify how the “operational realities test,” first enunciated by the court in O’Connor v. Ortega, 480 U.S. 709, 107 Sup. Ct. 1492, 94 L.Ed 2nd 714 (1987), applies to employerissued text pagers and whether an accommodation by a non-policy making lieutenant is enough to create a “reasonable expectation of privacy” in the content of personal use messages sent and received by such devices.

Plaintiff Quon will likely argue that because the lieutenant who was given the responsibility of administering the use of the city-owned pagers made it clear he would not audit their pagers, so long as they agreed to pay for any overages, that such an “operational reality of the workplace” mandates a finding of a reasonable expectation of privacy. The city of Ontario allegedly had no official policy specifically addressing the use of text message pagers or the “personal use” content contained therein and therefore the informal practice was the only “policy” the officer could or should rely on.

From the perspective of the city, the “operational realities” of the department includes the fact that the lieutenant who made the accommodation for bill paying purposes was not a policy maker, that the department pagers were issued to facilitate S.W.A.T. team operations, that the city had an official policy of no privacy in electronic communications and that there was a significant possibility of public disclosure of the text messages. In a stinging dissent from the denial of a re-hearing en banc, the dissent emphasized Lt. Duke had informed Quon that text messages were considered e-mails and subject to audit and thus any expectation of privacy could not be reasonable. Moreover, the dissent pointed out, it would be unreasonable to expect that pagers used by S.W.A.T. officers in S.W.A.T. activities might not be subsequently reviewed, or subject to discovery or to production pursuant to the California Public Records Act.

Under these factors, the city will likely argue there can be no reasonable expectation of privacy in communications made on government-owned equipment and any subjective reliance by Quon on the administrative lieutenant’s accommodations is simply not reasonable as a matter of law. The city will likely point out its overriding interest in ensuring that the work of the police department is conducted in a proper and efficient manner, stressing that that interest is particularly strong when the employer is a police department. See, Dible v. City of Chandler, 515 F.3d 918, 928, 9th Cir. 208.

Did the Ninth Circuit Employ the “Less Restrictive Means Test”?

The second question addresses the Ninth Circuit’s use, and in the dissent’s view its improper reliance, on the case of Schowengerdt v. General Dynamics Corp., 823 F.2d 1328, 9th Cir. (1987). In Schowengerdt, the court stated that the scope of an inquiry must be no broader than necessary and that if “less intrusive methods” were feasible, the search would be unreasonable and Schowengerdt’s Fourth Amendment rights would have been violated.

The Ninth Circuit denies that the “less intrusive methods” test, as enunciated in Schowengerdt, was employed to determine whether the search of the text messages was reasonable. Indeed, while the Ninth Circuit panel contends it never adopted a less-intrusive means test, seven dissenting Ninth Circuit judges disagreed. The dissent noted that “although the panel does not explicitly state it is applying a least restrictive means test, it does just that,” pointing out that the Supreme Court has repeatedly rejected a less intrusive means analysis for purposes of determining the reasonableness of a search in a special needs context. Id. at 779.

The dissent pointed out that the Ninth Circuit would require a government employer to demonstrate that there are no less intrusive means available to determine whether its wireless contract was sufficient to meet its needs. Judge Ikuta concluded that the panel’s decision undercuts the Supreme Court’s consistent prohibition on reading a less intrusive means requirement into the Fourth Amendment’s prohibition on unreasonable searches and it also undermines the “reasoning and logic of O’Connor v. Ortega.”

Do Third Parties Have a Reasonable Expectation of Privacy?

This issue squarely addresses the claims of the remaining Quon defendants who sent text messages to Sergeant Quon. From the perspective of the city, this is clearly an overextension of the Fourth Amendment protections to individuals who lack any reasonable expectation of privacy to begin with inasmuch as they are sending text messages to a government-issued text pager. In fact, the city correctly notes that to the extent that the other plaintiffs were relying upon Sergeant Quon to continue to pay his overage bills, such reliance could not constitute a reasonable expectation of privacy in the text messages sent.

Conclusion

Had there been no informal practice instituted by the Ontario Police Department, there is general consensus that no reasonable expectation of privacy existed and the plaintiffs’ claims would not have survived the trial court stage. Is the Supreme Court willing to extend employees’ privacy interests to text messages regardless of the existence of general policies that place employees on notice of the right of employers to audit and review the contents of electronic communications? How broadly or narrowly will the court view the facts? Will Justice Scalia, for example, be joined by a plurality of the court and take a more categorical approach to the privacy right at issue? Will the court conclude that regardless of the mode of transmission, the content of personal communications should enjoy a presumption of privacy that requires a greater showing of “reasonableness” to justify a warrantless search? Or will the court focus on the remaining “operational realities of the workplace” — in this case, a police department where the actions of its S.W.A.T. officers are often the subject of intense scrutiny and review — and determine that society is not prepared to view such an expectation as reasonable? The Supreme Court’s pronouncements may likely not be the last chapter in this case, as individual state legislatures or Congress may legislate new privacy rights and protections.

The lessons learned from the Quon case to date, however, are clear. First and foremost, do not deviate from a formalized policy that provides an employer with the employee consent needed to retain access to the content of electronic communications. Second, ensure that consent from the ultimate end user is always obtained in writing. Third, both employers and wireless service providers should consult both their legal staff and their technical personnel in developing the best electronic communications and record retention/destruction policies currently available. As emerging technologies continue to develop, such as Internet-based communication technologies, new matters will emerge that will test the Fourth Amendment’s scope. In the future, what constitutes a reasonable expectation of privacy in the context of a public network will continue to be redefined by both the courts and the legislature.

This advisory, was originally published in Law 360.