The United States Supreme Court has ruled unanimously that a California city’s audit of a police officer’s text messages was reasonable, and rejected a lawsuit claiming that the review violated the Fourth Amendment. At the same time, the Court declined to issue “[a] broad holding concerning employees’ privacy expectations vis-à-vis employer-provided technological equipment,” on the ground that such a ruling “might have implications for future cases that cannot be predicted.”
The case, City of Ontario v. Quon, involved text messages sent and received by an officer on the City of Ontario’s SWAT team. The City issued Sergeant Jeff Quon and his colleagues pagers to use on the job, with a limit on the number of messages that could be sent. The City also advised officers that text messages “would fall under the City’s policy as public information and [would be] eligible for auditing.”
Quon and others exceeded their allotted number of texts, but claimed that a supervisor had informed them that their messages would not be audited as long as the officers paid for any overage charges. After several months, the supervisor told Chief Lloyd Scharf that he was “tired of being a bill collector,” and Scharf decided to review the text messages to determine why the officers were exceeding their limits. Scharf and an investigator found that the vast majority of Quon’s messages—as many as 80 per day sent while Quon was on duty—were personal, and that many were sexually explicit.
Quon and some of those with whom he exchanged messages—his wife, a colleague with whom he had a romantic relationship, and a second colleague—then sued the City and its service provider. They claimed, among other things, that the review of Quon’s text messages violated their Fourth Amendment rights.
A Broad Issue
The district court found that whether the audit was reasonable under the Fourth Amendment depended on its motives. Because the jury found that Chief Scharf ordered the audit to re-evaluate the City’s service plan, and not to investigate Quon’s activities, the court determined that the audit was reasonable.
The 9th Circuit Court of Appeals reversed in part. Quon v. Arch Wireless Operating Co., Inc., 529 F.3d 892 (9th Cir. 2008). Like the district court, it found that Quon had a reasonable expectation of privacy in his text messages, and that the search was conducted for a legitimate purpose. But the appellate panel found that the search “was not reasonable in scope.” Because the City could have determined the nature of the text messages in less invasive ways—such as by warning Quon that future messages would be audited—the 9th Circuit found that the search was unreasonable and thus a violation of Quon’s Fourth Amendment rights. The City petitioned for certiorari, and the United States Supreme Court accepted the case.
Similarly, an amici brief filed by Davis Wright Tremaine on behalf of eight press organizations—Los Angeles Times Communications LLC, The Press-Enterprise Company, The Associated Press, The E.W. Scripps Company, the California Newspapers Publishers Association, the Reporters Committee for Freedom of the Press, the First Amendment Coalition, and Californians Aware—raised concerns over any ruling that would undercut the state’s public records laws. As the amici argued, “[t]he California Public Records Act, as well as a panoply of other similar federal and state laws, imposes unique disclosure obligations on governmental agencies. … These obligations undercut any public employee’s claim to privacy in electronic communications conducted on government-issued equipment, for, in order to comply with the obligations, governmental agencies must have the ability to collect and review electronic records reflecting the conduct of their employees.”
A Narrow Solution
Faced with underlying issues related to the privacy interest in electronic communications, the Court chose to issue a narrow decision.
Justice Anthony Kennedy, writing for the Court, expressed concern that the issue of whether Quon had a reasonable expectation of privacy would require deciding, among other things, “whether a review of messages sent on police pagers, particularly those sent while officers are on duty, might be justified for … performance evaluations, litigation concerning the lawfulness of police actions, and perhaps compliance with state open records laws.” Kennedy also cautioned that “[t]he 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.”
Faced with such thorny questions, the Court chose to assume for purposes of its evaluation that Quon had a reasonable expectation of privacy in the text messages, and that the City’s review of the messages constituted a “search” within the meaning of the Fourth Amendment. But even given these assumptions, the Court concluded that the scope of the review of Quon’s text messages was reasonable.
“This Court has repeatedly refused to declare that only the least intrusive search practicable can be reasonable under the Fourth Amendment,” the Court stated. “That rationale 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.” The Court noted that Quon’s superiors had limited the scope of their audit—for example, by redacting messages sent and received while Quon was off duty.
Hints of A Standard?
By deferring the question of whether Quon had a reasonable expectation of privacy in his text messages at all, the Court carefully limited the reach of its decision. At the same time, its language provides some helpful insights into the Justices’ rationale on the issue of public employees’ expectations of privacy when viewed against the backdrop of state and federal open records laws.
Kennedy’s majority opinion, for example, noted that “compliance with state open records laws” might affect the Fourth Amendment analysis and that “[a]s a law enforcement officer, [Quon] would or should have known that his actions were likely to come under legal scrutiny, and that this might entail an analysis of his on-the-job communications.” In a concurrence, Justice Stevens added that “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.”
Both of these statements suggest that, when faced squarely with the issue, at least some members of the Court may be inclined toward the position advocated by the City and the press amici—that, in the words of the latter, “[w]hether or not a private employer is restricted in its ability to review its employees’ electronic communications … government employers necessarily must have the ability to do so” in order to fulfill their duties under open records laws.