Long Awaited Text Messaging Privacy Decision: City of Ontario v. Quon

Today the US Supreme Court handed down a long awaited decision in the case of City of Ontario v. Quon, addressing an employee’s right to privacy in electronic messages. While the case involved a police officer, the decision has important ramifications for all public employees, including firefighters.

Sergeant Jeff Quon was a SWAT officer for the City of Ontario Police Department. He was issued an Arch Wireless two way pager by the department, capable of sending and receiving text messages. The City had a written policy addressing use of the department computer system and emails that reserved “the right to monitor and log all network activity including e-mail and Internet use, with or without notice. Users should have no expectation of privacy or confidentiality when using these resources.” However, the policy did not mention pagers or text messages.

Quon was told that the pagers and text messages would be treated like emails under the policy, and that police officers could use up to the monthly allotment of characters for messaging purposes. When Quon went over his monthly allotment, Lt. Duke, the officer responsible for the pagers informed him that he needed to pay the overage or else the department would have to examine the text messages to determine if they were work related or personal. Lt. Duke told Quon that as long as he paid the overages, no one would look at the messages. Quon paid the overage.

When the overages continued in subsequent months, Lt. Duke complained to the chief who ordered an investigation to determine whether the monthly allocation was adequate. As part of the investigation, Arch Wireless provided the department with copies of the text messages. At that point it became apparent that Quon had been sending sexually explicit messages to female coworkers, including his wife (a police officer) and another employee (dispatcher) with whom he was romantically involved. An internal affairs investigation was then initiated.

In the mean time, Quon, his wife and the female coworker sued Arch Wireless and the City of Ontario alleging that their privacy rights had been violated. The district court dismissed Arch Wireless from the suit, but concluded that Quon had a reasonable expectation of privacy in his text messages. The Ninth Circuit Court of Appeals agreed, finding that Lt. Duke’s statement that the Department would not review the text messages provided Quon voluntarily paid any overage charges, created a reasonable expectation of privacy.

The US Supreme Court disagreed. Recognizing the importance of the case, as well as the challenge posed by emerging technologies – the Court said:

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. See, e.g., Olmstead v. United States, 277 U. S. 438 (1928), overruled by Katz v. United States, 389 U. S. 347, 353 (1967). In Katz, the Court relied on its own knowledge and experience to conclude that there is a reasonable expectation of privacy in a telephone booth. See id., at 360–361 (Harlan, J., concurring). It is not so clear that courts at present are on so sure a ground. Prudence 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.  Rapid changes in the dynamics of communication and information transmission are evident not just in the technology itself but in what society accepts as proper behavior… At present, it is uncertain how workplace norms, and the law’s treatment of them, will evolve…

 Cell phone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self identification. That might strengthen the case for an expectation of privacy. On the other hand, the ubiquity of those devices has made them generally affordable, so one could counter that employees who need cell phones or similar devices for personal matters can purchase and pay for their own. And employer policies concerning communications will of course shape the reasonable expectations of their employees, especially to the extent that such policies are clearly communicated.

A broad holding concerning employees’ privacy expectations vis-à-vis employer-provided technological equipment might have implications for future cases that cannot be predicted. It is preferable to dispose of this case on narrower grounds. For present purposes we assume several propositions arguendo: First, Quon had a reasonable expectation of privacy in the text messages sent on the pager provided to him by the City; second, petitioners’ review of the transcript constituted a search within the meaning of the Fourth Amendment; and third, the principles applicable to a government employer’s search of an employee’s physical office apply with at least the same force when the employer intrudes on the employee’s privacy in the electronic sphere.

The Court went on to hold:

Under the approach of the O’Connor plurality, when conducted for a “non investigatory, work-related purpos[e]”or for the “investigatio[n] of work-related misconduct,” a government employer’s warrantless search is reasonable if it is “‘justified at its inception’” and if “‘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. 480 U. S., at 725– 726. The search here satisfied the standard of the O’Connor plurality and was reasonable under that approach.

The search was justified at its inception because there were “reasonable grounds for suspecting that the search [was] necessary for a non investigatory work-related purpose.” Id., at 726. As a jury found, Chief Scharf ordered the search in order to determine whether the character limit on the City’s contract with Arch Wireless was sufficient to meet the City’s needs. This was, as the Ninth Circuit noted, a “legitimate work-related rationale.” 529 F. 3d, at 908. The City and OPD had a legitimate interest in ensuring that employees were not being forced to pay out of their own pockets for work-related expenses, or on the other hand that the City was not paying for extensive personal communications.

As for the scope of the search, reviewing the transcripts was reasonable because it was an efficient and expedient way to determine whether Quon’s overages were the result of work-related messaging or personal use. The review was also not “‘excessively intrusive.’” O’Connor, supra, at 726 (plurality opinion). Although Quon had gone over his monthly allotment a number of times, OPD requested transcripts for only the months of August and September 2002. While it may have been reasonable as well for OPD to review transcripts of all the months in which Quon exceeded his allowance, it was certainly reasonable for OPD to review messages for just two months in order to obtain a large enough sample to decide whether the character limits were efficacious. And it is worth noting that during his internal affairs investigation, McMahon redacted all messages Quon sent while off duty, a measure which reduced the intrusiveness of any further review of the transcripts.

Furthermore, and again on the assumption that Quon had a reasonable expectation of privacy in the contents of his messages, the extent of an expectation is relevant to assessing whether the search was too intrusive. See Von Raab, supra, at 671; cf. Vernonia School Dist. 47J v. Acton, 515 U. S. 646, 654–657 (1995). Even if he could assume some level of privacy would inhere in his messages, it would not have been reasonable for Quon to conclude that his messages were in all circumstances immune from scrutiny. Quon was told that his messages were subject to auditing. As a law enforcement officer, he 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. Under the circumstances, a reasonable employee would be aware that sound management principles might require the audit of messages to determine whether the pager was being appropriately used. Given that the City issued the pagers to Quon and other SWAT Team members in order to help them more quickly respond to crises—and given that Quon had received no assurances of privacy—Quon could have anticipated that it might be necessary for the City to audit pager messages to assess the SWAT Team’s performance in particular emergency situations.

From OPD’s perspective, the fact that Quon likely had only a limited privacy expectation, with boundaries that we need not here explore, lessened the risk that the review would intrude on highly private details of Quon’s life. OPD’s audit of messages on Quon’s employer-provided pager was not nearly as intrusive as a search of his personal e-mail account or pager, or a wiretap on his home phone line, would have been. That the search did reveal intimate details of Quon’s life does not make it unreasonable, for under the circumstances a reasonable employer would not expect that such a review would intrude on such matters. The search was permissible in its scope.

Thus, the Court concluded that Sergeant Quon’s 4th Amendment privacy rights were not violated by the department’s actions.

How does the decision impact fire departments? All fire and emergency service organizations should have a comprehensive written policy that addresses computer and email usage, as well as voice messaging, digital messaging, text messaging, and various other forms of electronic data. This case could just as easily have involved a stored voicemail on a department issued cellphone, a voice message on an office answering system, or a text message sent via a mobile data terminal on a piece of fire apparatus. The policy should specify the extent to which an employee can expect his/her privacy to be respected when using any of these mediums, or in the alternative, clearly state that the department reserves the right to examine, copy, forward, store, save and share with third parties any and all such information.

Another important consideration is the purpose of the search. In Quon, the search was conducted for a legitimate, non-investigatory business related purpose, namely: to determine whether the monthly pager messaging allotment was adequate. Had the search been conducted for purposes of finding criminal activity by the employee, or even for internal disciplinary purposes, the analysis of the court would have been different.

Here is a copy of the decision. Download Ontario v Quon SCT

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

Check Also

Vermont Town Sues KME and Navistar for $2.5 Million over Fire Station Fire

A Vermont town is suing two fire truck manufacturers for $2.5 million over a fire originating in one of their fire trucks. The Town of Randolph filed suit last week against KME and Navistar over a 2015 fire that destroyed the Town’s Central Street station.

Spokane Fire Confronts Hazing of Probies

The Spokane Fire Department is reviewing an investigative report into allegations of hazing and bullying of probationary employees at one of their fire stations. The investigation was conducted by the city’s Human Resource department who interviewed 30 members.