A search of an employee’s text messages by a public employer does not violate the Fourth Amendment, according to the United States Supreme Court’s decision in City of Ontario, California, et al. v. Quon, et al., 560 U.S. ___ (2010). In so holding, the Court reversed the Ninth Circuit.1 The decision, while characterized by the Court as a “narrow” Fourth Amendment holding applicable only in the public employment context, still provides some practical guidance for private employers regarding their latitude to monitor employees’ electronic communications and underscores the need for explicit, clearly communicated employment policies regarding such monitoring.
The Ontario Police Department, an arm of the City of Ontario (“City”), provided two-way pagers to its employees and used a third-party service provider, Arch Wireless (“Arch”), to provide text messaging services on the pagers. The City’s contract with Arch provided for a maximum number of text message “characters” per pager per month after which additional fees would be charged. One of the employees who received a City pager was plaintiff Jeff Quon (“Quon”), a police sergeant and member of its SWAT team.
The City had a “Computer Usage, Internet and E-mail Policy” prior to acquisition of the pagers which advised employees that the City “reserves the right to monitor and log all network activity including e-mail and Internet use, with or without notice” and that “users should have no expectation of privacy or confidentiality when using these resources.” Although the policy did not explicitly apply to the pagers or text messages, once the pagers were acquired, employees including Quon were told, both verbally and in a written memorandum from the chief of police, that text messages would be treated the same as e-mails; both would be subject to audit.
Almost immediately, Quon exceeded his monthly text message character allotment. The police lieutenant responsible for the City’s contract with Arch so advised Quon, reminded him that his text messages “could be audited,” but told him he had no intention of doing so as long as Quon paid the overages. Over the next few months, Quon exceeded the limit several times, and each time reimbursed the City. In light of the repeated overages, the police chief decided to determine whether the existing character limit was too low — that is, whether officers such as Quon were having to pay fees for sending work-related messages — and asked his staff to request from Arch and review transcripts of the text messages sent and received during a two-month period by Quon and another officer who also exceeded the limit. Investigation showed that the vast majority of Quon’s messages (399 out of 456 during one month) were not work-related and many were sexually explicit.
Quon was disciplined, and he (and those to whom he had sent or received the messages) sued the City for invading their privacy and violating their rights under the Fourth Amendment and the Stored Communications Act (SCA), and Arch for violating the SCA by turning over the transcripts of those messages to the City.
The District Court’s Decision
The District Court analyzed the employees’ Fourth Amendment rights (applicable to public employers) and California constitutional privacy rights (applicable to both public and private employers) under the same rubric. First, it held that because the police lieutenant had told Quon and others that so long as they paid the overages, he did not intend to audit their messages, Quon had a reasonable expectation of privacy with regard to the content of his text messages. According to the court, the lieutenant’s having made that comment completely “vitiated” the police department’s e-mail and text message policy. The court strongly implied that had it not been for that comment, there would be no basis for Quon’s claim that he had a reasonable expectation of privacy in his text messages. The District Court concluded, however, that the “search” — the review of Quon’s messages — was “reasonable,” since it was motivated by the legitimate business purpose of determining if the overage limits were sufficient. Therefore Quon’s Fourth Amendment and state privacy rights were not violated. The court also found that since Arch was not an “electronic communications service,” the SCA did not provide a claim against Arch.
The Ninth Circuit’s Decision
In affirming the first prong of the District Court’s holding, the Ninth Circuit suggested, as had the District Court, that but for the lieutenant’s remark, the department’s written e-mail and text message policy would have negated any expectation of privacy. It agreed with the District Court, however, that the lieutenant’s verbal remark in effect overrode the written policy, resulting in an “informal policy” that the department intended to follow that Quon’s text messages would not be audited if he paid the overages, which rendered his expectation of privacy in those messages reasonable.
In so doing, however, the Ninth Circuit refused to “endorse a monolithic view of text message users’ reasonable expectations of privacy, as they are necessarily a context-sensitive inquiry.” But, in dictum, the court did equate text messages with letters and telephone calls, stating that while individuals do not have a reasonable expectation of privacy concerning the addresses they place on the outside of an envelope sent nor the number dialed on the telephone for a telephone call, they do have a reasonable expectation of privacy as to the content of their letters and conversations.
However, the Ninth Circuit reversed the District Court’s determination that the search was reasonable. While it did not dispute the proffered business justification for the police department’s action — the desire to assess whether the monthly character limit was sufficient — it noted the police department had “less intrusive” alternatives it could have followed, such as (a) warning Quon that for the upcoming month he was forbidden from using his pager for personal communications and that the contents of his messages that month would be reviewed to insure they were all work-related; (b) asking Quon to review the transcripts and count the characters himself; or (c) asking Quon to redact personal messages from the transcripts and then grant permission to the police department to review the redacted transcripts. The Ninth Circuit thus concluded that the scope of the search was unreasonable, and hence that Quon’s (and the others’) privacy and Fourth Amendment rights were violated.
The U.S. Supreme Court’s Decision
As framed by the Court, the issue presented was the “narrow” one of whether or not a government employer has the right, under the circumstances presented, to read text messages sent and received on a pager the employer owned and issued to an employee, without violating the Fourth Amendment ban on unreasonable searches and seizures.2
Preliminarily, the Supreme Court refused to become embroiled in whether the police lieutenant’s comment — that while employees’ text messages “could be audited,” he did “not intend” to do so if the employees paid the overages — did or did not override the police department’s stated, written e-mail and text message policy and thereby create an expectation of privacy. Nor did the Supreme Court want to take on the general issue of whether or to what extent text messages, or other forms of electronic communication engaged in by employees, should or should not enjoy general privacy protection. “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.” For that reason, “[p]rudence 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.”
Instead, the Court assumed, for purposes of argument, that Quon had a reasonable expectation of privacy and that the City’s review of the messages constituted a “search” to which the Fourth Amendment applied. The Court also assumed that the principles the Court had announced in a prior case, O’Connor v. Ortega, 480 U.S. 709 (1987), relating to a government employer’s search of an employee’s office including his desk and file cabinet, apply “with at least the same force” when the employer encroaches on the employee’s privacy “in the electronic sphere.” That left only the question of whether the search was “reasonable,” since, under the Fourth Amendment, only “unreasonable” warrantless searches are proscribed.
In testing “reasonableness,” O’Connor focused on two things: first, whether there was a legitimate, work-related justification for the search at its inception, and second, whether 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.” The Court held that what the police department had done in Quon’s case passed both tests. The proffered work-related reason — that the City needed to determine whether the text character limit in its contract with Arch was sufficient, or whether employees might have been having to bear the cost of work-related excess messages — was, according to the Court, sufficient to justify the search. The methods employed were directed toward that purpose.
Nor was the search excessively intrusive. The City had confined its review of Quon’s messages to a two-month period, despite his having exceeded the limit during other months as well; it had also redacted, and had not reviewed the transcripts of, any text messages sent by Quon while off-duty. Ultimately, the Court reasoned, any reasonable privacy expectation Quon had would have been seriously limited where the City never assured him of privacy in connection with the text messages, where he knew that an audit of the messages was at least a possibility, and where he, a law enforcement officer, should have known that his conduct could be subject to “legal scrutiny.” Thus the search was reasonable and not a Fourth Amendment violation. Significantly, the Court went on to conclude that given that the search was not unreasonable as to Quon, likewise it was not unreasonable to third parties who had sent text messages to Quon.
With regard to the Ninth Circuit’s belief that the search was unreasonable since less intrusive means for conducting it were possible such as asking Quon to do it himself, the Supreme Court observed that “this approach [is] inconsistent with controlling precedents. This Court has ‘repeatedly refused to declare that only the “least intrusive” search practicable can be reasonable under the Fourth Amendment.” As the Supreme Court observed, the “least intrusive” rationale employed by the Ninth Circuit to hold the search unreasonable “could raise insuperable barriers to the exercise of virtually all search-and-seizure powers,. . .because judges engaged in post hoc evaluations of government conduct can almost always imagine some alternative means by which the objectives of the government might have been accomplished.”
Significance for Private Employers
Although the Fourth Amendment does not apply to private employers, the Court’s analysis of Quon’s privacy expectation and the City’s obligations in connection with a legitimate work-related purpose is instructive. The Supreme Court explicitly recognized as much in its decision, stating: “For these same reasons — that the employer had a legitimate reason for the search, and that the search was not excessively intrusive in light of that justification — the Court also concludes that the search would be ‘regarded as reasonable and normal in the private-employer context. . . .” (Emphasis added)
The bottom line: This decision strongly suggests that where an employer (a) has clearly written, well-disseminated policies limiting or eliminating any expectation of privacy and (b) a provable, legitimate business purpose for conducting a search or review of electronic communications found on employer equipment, that search or review may be undertaken without violating employee privacy interests. The Supreme Court’s holding also underscores that a search should not be found excessively intrusive simply because less intrusive means may have been available, thereby enforcing the notion that with a legitimate business purpose the employer has some latitude in determining how to approach its review of electronic communications.
Whether or not the California Supreme Court would find that the California Constitution provides a reasonable expectation of privacy in an employee’s text messages is currently unknown. Employers are, however, best advised to do what is necessary to eliminate any expectation of privacy for electronic communications on workplace equipment.
For more information on this alert or any other labor and employment issues, please contact any of the lawyers listed below:
John Adkins, firstname.lastname@example.org, 617.951.8551
Jenny Cooper, email@example.com, 617.951.8473
Louis Rodriques, Co-chair, Labor and Employment Group, firstname.lastname@example.org, 617.951.8340
1 Click here for Bingham’s alert regarding the Ninth Circuit’s decision in Quon v. Arch Wireless Operating Co., Inc., 529 F.3d 892 (9th Cir. 2008).
2 The Court denied Arch’s petition for certiorari challenging the Ninth Circuit’s holding that they violated the SCA.
This article was originally published by Bingham McCutchen LLP.