Police Sergeant’s Texting Leads To Supreme Court Privacy Decision

Of the 75 to 100 decisions the Supreme Court issues each year, only roughly half a dozen involve labor issues. Decisions involving public safety employees are extremely rare, coming up only once every five to ten years or so. It was thus an unusual event that a widely-anticipated case involving how the right to privacy applies to electronic communications involved a police sergeant.

Jeff Quon was a sergeant for the Ontario, California Police Department and was a member of the Department’s SWAT Team. In October 2001, the City acquired 20 alphanumeric pagers capable of sending and receiving text messages. Arch Wireless Operating Company provided wireless service for the pagers. Under the City’s service contract with Arch Wireless, each pager was allotted a limited number of characters sent or received each month. Usage in excess of that amount would result in an additional fee.

The City issued pagers to Quon and other SWAT Team members in order to help the SWAT Team mobilize and respond to emergency situations. Before acquiring the pagers, the City announced a “Computer Usage, Internet and E-Mail Policy” that specified that the City “reserves 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.” In March 2000, Quon signed a statement acknowledging that he had read and understood the Computer Policy.

Although the Computer Policy did not cover text messages by its explicit terms, the City made clear to employees, including Quon, that the City would treat text messages the same way as it treated e-mails. At an April 18, 2002 staff meeting at which Quon was present, Lieutenant Steven Duke, the officer responsible for the City’s contract with Arch Wireless, told officers that messages sent on the pagers “are considered e-mail messages. This means that text messages would fall under the City’s policy as public information and would be eligible for auditing.”

Within the first or second billing cycle after the pagers were distributed, Quon exceeded his monthly text message character allotment. Duke told Quon about the overage, and reminded him that messages sent on the pagers were “considered e-mail and could be audited.” Duke said, however, that “it was not his intent to audit an employee’s text messages to see if the overage was due to work-related transmissions.” Duke suggested that Quon could reimburse the City for the overage fee rather than have Duke audit the messages. Quon wrote a check to the City for the overage. Duke offered the same arrangement to other employees who incurred overage fees.

Over the next few months, Quon exceeded his character limit three or four times. Each time he reimbursed the City. Quon and another officer again incurred overage fees for their pager usage in August 2002. At a meeting in October, Duke grew “tired of being a bill collector.” At Duke’s request, an administrative assistant employed by the Department contacted Arch Wireless and obtained transcripts of the text messages. Duke reviewed the transcripts and discovered that many of the messages sent and received on Quon’s pager were not work related, and some were sexually explicit. An internal affairs investigation concluded that Quon sent or received 456 messages during work hours in the month of August 2002, of which no more than 57 were work related; he sent as many as 80 messages during a single day at work; and on an average workday, Quon sent or received 28 messages, of which only three were related to police business.

When Quon was disciplined by the City, he sued both Arch Wireless and the City, alleging the disclosure and review of the text messages violated his right to privacy.

Employee privacy lawsuits usually involve a two-stage inquiry. First, a court will ask whether the employee has a reasonable expectation of privacy in whatever the litigation is about (for example, the contents of a desk or locker). If a reasonable expectation of privacy exists, then the Court will examine whether the employer had a sufficient justification for intruding upon those privacy rights.

In Quon’s case, the Supreme Court ducked the first of the two issues, explicitly not deciding whether Quon had a reasonable expectation of privacy in his text messages. The Court’s rationale for not deciding the question was that “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.”

Instead, the Court assumed that Quon had a right to privacy in the messages, and found that the City had sufficient justification for reading the messages. Quoting from an earlier decision, the Court found that a workplace search can be justified by a “non-investigatory, work-related purpose” or for the “investigation of work-related misconduct” if the search 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.”

The Court found the City’s review of the text messages justified under this test. As the Court saw it, “the search was ordered to determine whether the character limit on the City’s contract with Arch Wireless was sufficient to meet the City’s needs. This was a legitimate work-related rationale. The City 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.

“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. Even if Quon 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. 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.”

The Court’s focus on Quon’s status as a law enforcement officer is a fairly clear signal that from the Court’s perspective, if a communication is subject to disclosure under a public records law or in the criminal or civil discovery process, the officer should not assume that the communication is shielded by any privacy rights.

City of Ontario v. Quon, http://www.supremecourt.gov/opinions/09pdf/08-1332/pdf (June 17, 2010).

Note: The decision by the Court not to address whether Quon had a reasonable expectation of privacy in the text messages caused a sigh of relief from many Supreme Court watchers who were concerned that the Court’s decision might not fully grasp evolving technology. In the oral argument of the case months before, some members of the Court seemed confused as to precisely what text messaging was. Chief Justice John G. Roberts, Jr., who does not use a computer, asked during oral argument what the difference was “between e-mail and a pager?”

This article appears in the August 2010 issue