The Supreme Court yesterday passed on an opportunity to
articulate a standard for employees' reasonable expectations of
privacy in text messages transmitted on employers' electronic
devices. Reversing the Ninth Circuit, the Court held that, even
assuming a reasonable expectation of privacy, a municipal
employer's search of its employee's text messages was
reasonable under the Fourth Amendment.
City of Ontario v. Quon, No. 08-1332, slip op., (U.S. Jun.
17, 2010). In bypassing the threshold issue of an employee's
privacy expectations, Justice Kennedy cited the difficulty
predicting "how employees' privacy expectations will be
shaped by [technological] changes" or "the degree to
which society will be prepared to recognize those expectations as
reasonable" as justifying narrower grounds for decision.
Id. at 11. In a partially concurring opinion, Justice
Scalia warned that the majority's speculation as to the scope
of employees' Fourth Amendment rights, in a case where
determining the scope of those rights was not necessary, would lead
to lower courts being "bombard[ed] . . . with arguments about
employer policies, how they were communicated, and whether they
were authorized, as well as the latest trends in employees' use
of electronic media." City of Ontario v. Quon, No.
08-1332, slip op., at 3 (U.S. Jun. 17, 2010) (Scalia, J. concurring
in part and dissenting in part). Although the Court sidestepped the
question of employees' privacy expectations in text messages,
the majority's decision conveys a thoughtful recognition of how
technological developments may be understood to impact the
development of the case law, an important acknowledgement for
courts deciding electronic discovery issues.
This case arose out of incidents in 2001 and 2002 involving
respondent Jeff Quon, a police sergeant for the City of Ontario,
California and a member of the Ontario Police Department
("OPD")'s Special Weapons and Tactics (SWAT) Team.
Quon, slip op. at 1-2. Quon exceeded his monthly text
messaging limit on the number of characters sent or received on his
City-issued pager, intended for use in connection with his SWAT
duties, and as a result additional fees were incurred by the City
under its contract with the wireless provider, Arch Wireless.
Id. at 2. The OPD subsequently conducted an audit of text
messages by sent by Quon. Id. at 3-4. After determining
that many of the messages sent by Quon were not work related, and
some were in fact sexually explicit, Quon was referred for internal
investigation and, allegedly disciplined for his behavior.
Id. at 4.
Quon filed suit against the petitioners (including Arch Wireless
and the OPD) in the United States District Court for the Central
District of California under Rev. Stat. § 1979, the Stored
Communications Act (SCA), 18 U.S.C. §2701 et seq., 42
U.S.C. § 1983, and California law, alleging that petitioners
violated both respondents' Fourth Amendment rights and the SCA
by obtaining and reviewing transcripts of Quon's text messages.
Id. at 5. On summary judgment, the District Court denied
petitioners' summary judgment motion on the Fourth Amendment
claims. Id. The Court relied on the plurality test in
O'Connor v. Ortega, 480 U.S. 709, 711 (1987), to find
that Quon had a reasonable expectation of privacy in the content of
his messages. It then held a jury trial to determine whether the
OPD's audit of Quon's messages was reasonable under the
Fourth Amendment. Id. The jury found that it was, because
Chief Scharf's intent in ordering the audit was to ensure that
the existing character limit was adequate for officers'
work-related purposes, rather than to investigate whether Quon was
"play[ing] games" or "wast[ing] time."
Id. at 5-6. On appeal, a divided panel of the Ninth
Circuit reversed in part. 529 F.3d 892 (2008). The panel applied
the O'Connor plurality test and affirmed the District
Court as to Quon's expectation of privacy, but determined that
the OPD's audit was unreasonable largely because there were
"less-intrusive means" by which the OPD could have
verified the efficacy of the character limit. Quon, slip
op. at 6.
Assuming for purposes of the opinion that Quon had a reasonable
expectation of privacy in his text messages, the Supreme Court held
first that the City's search was reasonable because there were
legitimate work-related grounds for a non-investigatory search
(i.e., to determine, in light of Quon's overages, if the
quantity of monthly texts allotted to employees was appropriate).
Id. at 12-13.
Second, the Court held that the scope of the search -- the review
of two months' worth of text messages sent by Quon during
on-duty hours -- was reasonable because it was an "efficient
and expedient way to determine" if Quon's overages were
for business or personal use. Id. at 13. According to the
Court, the Ninth Circuit erred in finding that the OPD audit was
not reasonable because other, less intrusive alternative were
available; such an approach might raise impossible barriers to the
use of "virtually all search-and-seizure powers."
Id. at 15.
The Court's decision leaves many open questions regarding
employees' use of employer-issued electronic devices, noting
the importance of the issue even while deferring it for another
day:
Id. at 11. Though dicta, this aspect of the
Court's ruling will likely be featured in subsequent caselaw
involving access to electronic communications, such as disputes
over their preservation, discoverability or privilege.
Given that the opinion leaves many issues unresolved, how should
employers handle employee text messaging in the meantime? Since the
Supreme Court expressly observed that "employer policies
concerning communications will of course shape the reasonable
expectations of their employees, especially to the extent that such
policies are clearly communicated," id. at 11,
employers should review any existing policies that might apply to
employee text messaging. Employers should consider implementing
policies that:
- explicitly address text messages or define "electronic
communications" broadly enough to include them;
- provide that there is no reasonable expectation of privacy in
the messages;
- are acknowledged in writing by employees; and
- address preservation of text messages in the event of a duty to preserve.
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