- Supreme Court Finds Public Employer Search Not Unreasonable under Fourth Amendment
- June 30, 2010 | Authors: Mitchell Boyarsky; JoAnna L. Brooks; Jason C. Gavejian; Joseph J. Lazzarotti; Chad P. Richter
- Law Firms: Jackson Lewis LLP - Morristown Office ; Jackson Lewis LLP - San Francisco Office ; Jackson Lewis LLP - Morristown Office ; Jackson Lewis LLP - White Plains Office ; Jackson Lewis LLP - San Francisco Office ; Jackson Lewis LLP - Omaha Office
In a unanimous decision, the U.S. Supreme Court has held that the City of Ontario’s review of transcripts of an employee’s text messages sent and received on a City-issued pager was a reasonable search under the Fourth Amendment. City of Ontario, Calif. v. Jeff Quon, et al., No. 08-1332 (June 17, 2010). The Court disposed of the case on narrow grounds, preferring to avoid the risks of establishing "far-reaching premises" before the role of technology in society and its Fourth Amendment implications become clear. Nevertheless, the principles outlined by the Supreme Court are instructive to all employers that allow employees to use electronic communications devices, including cellphones, I-Phones, and Blackberries, although the decision does not apply to employers in the private-sector.
The Ontario, California police department issued pagers to its SWAT team members, allowing them to exchange text messages to coordinate responses to emergencies. At the time, the City had a “Computer Usage, Internet and E-mail Policy” that permitted only incidental personal use of City-owned computers and equipment. It warned employees, however, that communications could be monitored and it stated expressly that employees should not expect privacy in the use of the City-owned equipment. Sgt. Jeff Quon, a SWAT team member, acknowledged in writing that he received and understood the policy.
The policy did not list City-issued pagers as a covered technology and, unlike e-mails, text messages do not pass through computers owned by the City. However, at a staff meeting attended by Quon and other SWAT team members, the police department made clear that it considered text messages to be the same as e-mail messages, that those messages were subject to its Computer Usage, Internet and E-mail Policy, and that they might be audited.
Under the City’s contract with its wireless service provider, each pager had a monthly character limit, above which the City had to pay additional charges. When Quon had overages on his account, the police lieutenant who administered the wireless contract reminded Quon that the text messages were treated as e-mail and could be audited, though it was not his intent to audit the messages to see if the overage was due to work-related transmissions. He suggested that Quon reimburse the City for the overages rather than have his messages audited.
During the next months, Quon and other officers who had overages reimbursed the City the applicable fees. However, the reimbursement process became an administrative burden and the department chief decided to review Quon’s and another employee’s message transcripts to see if the overage limit was appropriate and to ensure officers were not being required to pay for work-related expenses.
The department obtained transcripts of the messages from its service provider for a period of two months. (The service provider later was found to have provided the transcripts unlawfully under the Stored Communications Act.) An initial review of the transcripts showed that Quon was using his pager for extensive personal text messaging. The department opened an internal affairs investigation to determine if Quon was misusing work time. After reviewing only the messages Quon sent while on duty (off-duty messages were redacted), the department determined that he had 456 personal text messages during a one-month period. These averaged 28 transmissions sent and received during a shift, only three were considered work related. Some of the messages were to or from his wife (an Ontario police officer from whom he was separated), while others were directed to his mistress (an Ontario dispatcher) and another officer. Many messages were sexually explicit. Quon was disciplined.
Upon learning that their text messages were read by the City, Quon and the other plaintiffs sued the City for violations of their Fourth Amendment rights under the U.S. Constitution and the California Constitution. The district court ruled that the plaintiffs had a reasonable expectation of privacy in their text messages, but held a trial on the issue of the employer’s intent in conducting the search. The jury found that the employer’s intent was to determine whether the character limit was appropriate, leading the court to enter judgment in favor of the employer. The plaintiffs appealed to the Court of Appeals for the Ninth Circuit.
The Ninth Circuit agreed that Quon had a reasonable expectation of privacy in the text messages. It found the City’s practice trumped its own written policy, its employees’ signed acknowledgements, and its statements in staff meetings.
To determine if the search was reasonable, the court evaluated whether the search was “justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” It found the scope of the search unreasonable because there were “a host of simple ways to verify the efficacy of the 25,000 character limit . . . [was available] without intruding on the [plaintiffs’] Fourth Amendment rights.” Thus, because the court determined there were “less-intrusive” means to search, the search was found to be excessively intrusive and violated the plaintiffs’ Fourth Amendment rights and rights under the California Constitution.
The City appealed to the U.S. Supreme Court.
Supreme Court Decision
In a 9-0 decision issued on June 17, 2010, the Supreme Court held that the City of Ontario’s review of Quon’s text message transcripts was a reasonable search under the Fourth Amendment, reversing the Ninth Circuit Court of Appeals.
A Narrow Holding. The Court avoided deciding whether public employees have a reasonable expectation of privacy in text messages sent on employer-owned equipment under the Fourth Amendment and what particular standard ought to apply in making that determination. It acknowledged that rapid changes in communications and the means by which information is transmitted, as illustrated by advancements in technology and what society views as proper behavior, created significant challenges to setting legal standards for the workplace that would survive the test of time. The Court noted, “Prudence counsels caution before the facts of 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 communications devices.”
So, the Court assumed, without deciding, that Quon had a reasonable expectation of privacy in his text messages and the case could be decided on narrower grounds, i.e., whether the search was reasonable under well-defined Fourth Amendment standards.
Public Employer Workplace Searches. Under the Fourth Amendment, a government employer is permitted to conduct a workplace search without a warrant where it is (i) “justified at its inception” and (ii) reasonable in scope. A search is “justified at its inception” where it is conducted for a “noninvestigatory, work-related purpose” or for the “investigation of work-related misconduct.” O’Connor v. Ortega, 480 U.S.709, 725-26 (1987). A search is reasonable in scope where the measures used are reasonably related to the objectives of the search and not excessively intrusive under the circumstances. Id.
No Fourth Amendment Violation. Applying these standards, the Court held that the City’s review of Quon’s text message transcripts was reasonable.
According to the Court, the search had a clear non-investigatory, work-related purpose at its inception - to evaluate whether the monthly character limit was sufficient for the City’s needs and to ensure that employees were not paying out of pocket for work-related expenses.
As to the scope of the search, the Court found that reviewing the message transcripts was an efficient way to determine if the messages were work-related or personal and was not “excessively intrusive.” The Court pointed to at least five factors demonstrating a lack of excessive intrusion on Quon’s privacy:
- The City limited its transcript review to only a two-month period rather than the full nine or ten months the pager was in service.
- The City redacted any messages Quon sent or received while he was off duty and did not consider them.
- The City reviewed text messages sent over an employer-provided device and account and not Quon’s personal device or account.
- Quon was informed by the lieutenant that his text messages could be reviewed.
- Quon had constructive knowledge that his text messages could be reviewed in light of the public scrutiny that police officers are under in the performance of their work-related duties and because “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.”
The extent of an expectation of privacy, the Court reasoned, is relevant to assessing whether the scope of a search is reasonable. Moreover, “employer policies concerning communications will of course shape the reasonable expectations of their employees, especially to the extent that such policies are clearly communicated,” the Court said.
For these reasons, the Supreme Court rejected the Ninth Circuit’s arguments that less intrusive means were available to the City. “This Court has repeatedly refused to declare that only the ‘least intrusive’ search practicable can be reasonable under the Fourth Amendment,” it said.
In his concurring opinion, Justice Stevens found that Quon’s position as a law enforcement officer limited his expectation of privacy. Justice Stevens stated, “It is clear that respondent Jeff Quon, as a law enforcement officer who served on a SWAT Team, should have understood that all of his work-related actions—including all of his communications on his official pager—were likely to be subject to public and legal scrutiny. He therefore had only a limited expectation of privacy in relation to this particular audit of his pager messages.”
Justice Scalia, writing in his concurring opinion, took issue with the Court’s refusal to address the broader propositions present in this case. Justice Scalia stated, “The Court’s implication that where electronic privacy is concerned we should decide less than we otherwise would (that is, less than the principle of law necessary to resolve the case and guide private action)—or that we should hedge our bets by concocting case-specific standards or issuing opaque opinions—is in my view indefensible. The-times-they-are-a-changin’ is a feeble excuse for disregard of duty.”
Justice Scalia also would have preferred the Court to hold that government searches involving work-related materials or investigative violations of workplace rules — those that are reasonable and normal in the private sector — do not violate the Fourth Amendment. In fact, the Court addressed his complaint in the main opinion, stating the City’s search would be regarded as reasonable and normal in the private-employer context.