The United States Supreme Court issued its decision today in City of Ontario, California v. Quon, ruling that a public employer's examination of an employee's personal text messages on a government-issued pager did not violate the Fourth Amendment.  Justice Kennedy's opinion for the Court remarked that a review of messages on an employer-provided device would similarly be regarded as “reasonable and normal in the private-employer context.”

The City of Ontario asked its wireless service provider for details about the text messages sent and received by the city’s police officers, when their texts regularly exceeded the monthly limit for which the city had contracted. Officer Quon was disciplined for violating police department rules when the city discovered that he sent numerous personal messages, some of them sexually explicit, both on and off duty. He and other individuals who communicated with him sued the city, arguing that the city’s actions represented an unreasonable search in violation of the Fourth Amendment of the US Constitution, the privacy clause found in Article I, section 1 of the California constitution, and also the federal Stored Communications Act (SCA).

The US 9th Circuit Court of Appeals, citing the Supreme Court’s 1987 ruling in O’Connor v. Ortega, 480 US 709, found that Quon had a reasonable expectation of privacy in his message content and that the city's examination of his text messages was not reasonable, even though there was a legitimate, work-related purpose for auditing the officer’s wireless usage. The appellate court noted that the city could have used less intrusive means to review wireless usage and charges. The appellate decision drew widespread attention, including a 2008 article in the Los Angeles Daily Journal by my colleague Tanya Forsheit. Tanya pointed out that while the Fourth Amendment applies directly only to monitoring by government employers, a restrictive interpretation under the California constitution’s privacy clause (or the SCA) could affect communications monitoring by private-sector employers as well.

Today, the Supreme Court (addressing only the Fourth Amendment issues) reversed the 9^th Circuit decision and ruled that the city’s examination of Quon’s text messages was reasonable under the Supreme Court’s O’Connor standard:

Petitioners’ warrantless review of Quon’s pager transcript was reasonable under the O’Connor plurality’s approach because it was motivated by a legitimate work-related purpose, and because it was not excessive in scope.

The city had a reasonable interest in not controlling excessive personal use of communications devices, and also in setting an appropriate level of city-funded communications so that officers were not forced to pay for work-related communications. The Court observed that the city’s review was limited to a two-month sample of messages and that the city redacted Quon’s messages sent and received while he was off duty, to limit the intrusion into his personal life.

The Court noted that any reasonable privacy expectations were probably limited by the city’s Computer Policy, which stated (as do the policies of many employers) that users “should have no expectations of privacy or confidentiality” when using city computers. A subsequent memo made it clear that this policy extended as well to communications devices furnished by the city. Quon argued that this policy was modified by his superior’s subsequent verbal assurance that there would be no audit as long as officers paid for excess text usage. The Court declined to make a finding on that argument, assuming for purposes of the decision that Quon had some reasonable expectation of privacy. But the Court ruled that the city’s search of message content was reasonable because it was undertaken for a work-related purpose and used measures that were not excessively intrusive in the circumstances. And because the employer’s search was reasonable, the other parties who sent messages to Quon could not prevail on their argument that the review of message content violated their own Fourth Amendment rights.

The Supreme Court justices often disagree on what is a “reasonable expectation of privacy” and whether the government entity in question has appropriately limited the scope of its intrusion into private life. The O’Connor opinion, for example, was rendered by only a plurality of the justices. But Quon is a unanimous decision on its results, with limited concurring opinions by Justices Stevens and Scalia.

Justice Scalia’s concurring opinion argued that the "reasonable expectations" of employees using employer-issued devices should be addressed generally and not limited to public employees. In response, Justice Kennedy’s opinion for the Court suggests that reasonable expectations of privacy are typically limited in private sector employment just as they are for government employees:

 

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’
 

 

Justice Kennedy wisely cautions that judges should not rush to broad conclusions about reasonable privacy expectations with regard to the use of rapidly changing technologies:
 

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.

The Quon decision suggests a prudential approach to monitoring employee use of the employer’s computer or communications facilities, whether the employment is in the public or private sector:
 

• Employers should establish the level of privacy expectations with a coherent policy that covers all the technologies deployed.

• Employers are at risk when they delve into the content of messages or computer searches, or ask their service providers to do so, without a clearly articulated, work-related purpose (such as a targeted investigation of suspected wrongdoing or a non-investigative financial or administrative objective).

• Content review should be structured so as to limit privacy intrusions. The Quon decision emphasizes that this does not mean the “least intrusive search practicable” but simply a search reasonably limited to the employer’s legitimate, work-related objectives.

• A reasonably structured review of employee communications can also serve as a defense against privacy claims by non-employees who communicated with the employee.