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June 23, 2010

United States Supreme Court holds city’s review of employee messages on city pager was reasonable under the circumstances

United States Supreme Court holds city’s review of employee messages on city pager was reasonable under the circumstances
Source: Meyers Nave PLC. Reproduced with permission. Copyright © 2010, Meyers Nave. All rights reserved

In City of Ontario v. Quon, the U.S. Supreme Court issued a narrow ruling that the City's review of a SWAT officer's text messages sent over a City-issued pager was reasonable in the circumstances of that case, and thus did not violate the Fourth Amendment to the Constitution. But the Court avoided answering two broader questions about how courts should analyze non-investigatory, work-related searches by public employers—questions on which public entities had hoped Quon would provide guidance. The questions Quon left open are: (1) when do public employees have a “reasonable expectation of privacy” in their offices or electronic communications; and (2) if an employee has such an expectation, what is the test for whether an employer’s search was reasonable?

The City of Ontario adopted a written policy governing use of City computers, the Internet and email. The policy prohibited all but light personal use of City-owned electronic equipment, and specified that employees had no reasonable expectation of privacy or confidentiality in such use. The City then bought text pagers for its SWAT officers, and told them that the electronic communications policy applied to the pagers.

When a few SWAT officers exceeded the character limit on the City's pager plan, the lieutenant in charge of billing said he would not review their messages to separate the personal from the work-related, so long as officers who exceeded the limit paid the overage charges. Sergeant Quon interpreted this billing practice to mean that his text messages were no longer subject to the City-wide electronic communications policy. A few months later, the Police Chief ordered an audit of the text messages of officers who had consistently exceeded the character limit in the City’s pager plan, in order to determine if the limit was too low. The auditing officer redacted all messages sent during non-work hours. Sergeant Quon sued the City, contending that the review of his messages violated the Fourth Amendment.

A Fourth Amendment analysis involves two questions: (1) did the person have a reasonable expectation of privacy in the place searched; and (2) if so, was the search reasonable? In Quon, Justice Kennedy’s majority opinion approached both questions with extreme caution. The Court declined to set broad rules for when an employee’s expectations of privacy in electronic communications on employer-provided equipment will qualify as “reasonable” in the eyes of society, given the still-evolving role of electronic communications.

The Court also declined to decide what test to apply in future cases to determine if a public employee has a reasonable expectation of privacy in his or her office or electronic communications. The Court noted two possible approaches: a case-by-case evaluation to decide if an employee has a reasonable expectation of privacy under the circumstances, or a rule that the Fourth Amendment always applies to public employees’ offices or electronic communications. Quon does not choose between those approaches. Instead, the Court simply assumed for the sake of argument that Quon had a reasonable expectation of privacy in the text messages.

The Court similarly assumed that the City's review of the text messages was a ”search” subject to the Fourth Amendment, and that the principles governing the search of a public employee's office apply equally to searches in the electronic sphere. (Quon, Slip Op. at 12.)

The Court then discussed whether the search was permissible. At the outset, the Court noted a point raised by the League of California Cities and the California State Association of Counties in amicus briefs prepared by Meyers Nave. While warrantless searches are generally considered automatically unreasonable, one well-established exception to that rule is the "special needs" exception for government workplaces. (Quon, Slip Op. at 12.) That exception made a warrant unnecessary in Quon’s case, so the question was whether the search was reasonable.

The Court noted two possible approaches to whether a given search is reasonable—again, without deciding which approach to adopt for future cases. Under the first approach, a court must examine all the circumstances and ask: 1) was the search justified at its inception; and (2) were the measures adopted by the agency reasonably related to the objectives of the search and not excessively intrusive? (Quon, Slip Op. at 12.) Under the second approach, all “government searches to retrieve work-related materials or to investigate violations of workplace rules—searches of the sort that are regarded as reasonable and normal in the private-employer context” are always reasonable. (Id. at 9.)

Under the first approach, the Court found the search in Quon justified at its inception because the City had a legitimate interest in ensuring that the character limit on the City’s pager plan was appropriate. (Quon, Slip Op. at 13.)

The Court also found the scope of the search reasonable because the Department limited the search to two months’ worth of messages, and redacted all off-duty messages. (Ibid.) The Court added that, although it was assuming for argument’s sake that Quon had some reasonable expectation of privacy in the text messages, Quon could not reasonably have assumed that his messages could never be searched. (Ibid.) A reasonable law enforcement employee would realize that the text messages might be audited to determine whether the pager was being appropriately used, or to assess the SWAT team's performance in a particular emergency. (Id. at 14.) The Court then readily found that, for the same reasons, the search was reasonable under the second, “searches regarded as reasonable and normal for private employers” approach. Thus, it did not decide which of the two approaches courts must use in the future.

Justice Scalia filed a concurring opinion contending that the majority opinion improperly gave lower courts a “heavy-handed hint” about how to address the “reasonable expectation of privacy” issue. (Quon, Slip Op. (Scalia, J., concurring), at 2.) The Quon majority spent three pages discussing whether Quon’s expectation of privacy was reasonable in the circumstances—before ultimately saying that it was not going to decide that question, or even decide whether that question is relevant. Justice Scalia warned that lower courts will read this as a hint that, in future cases, they should follow the same case-by-case approach. (Ibid.)

Basically, Quon leaves governmental agencies with no clear standards to use in applying electronic communication policies. As Justice Scalia suggests, Quon will mean that, in each future case, public entities will very likely have to argue whether a given employee had a reasonable expectation of privacy in a particular office or electronic communication medium.

At most, governmental agencies can now be assured that: (1) a search warrant is not required for non-investigatory, work-related searches of electronic communications sent via publicly owned equipment, based on the "special needs" exception to the warrant requirement; and (2) if they take reasonable precautions to limit the intrusiveness and scope of a search to what is necessary to achieve its purpose, courts will likely find the search reasonable. However, the uncertainty and risk of litigation in this area mean that public entities should proceed with caution and consult legal counsel if possible before searching employees’ workspaces or electronic communications.

For more information on the Quon opinion or related legal issues regarding public employers and employees, contact Joseph Quinn or Nancy Thorington at 800.464.3559.


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Text prepared by Harvey Randall except as otherwise noted. Randall, former Principal Attorney, New York State Department of Civil Service, also served as Director of Personnel for the State University System; as Director of Research, Governor’s Office of Employee Relations; and as Staff Judge Advocate General, New York Guard. He has an MPA from the Maxwell School, Syracuse University and a J.D. from Albany Law School.