Employers Must be Prepared to Act Quickly

Today, June 17, the U.S. Supreme Court acknowledged that the law can rarely keep pace with technology. In the landmark case of City of Ontario v. Quon (08-1332), the Court determined that the City of Ontario, California, did not violate the police officer’s Fourth Amendment rights when it audited his text messages. The Court attempted to limit its ruling because of the fast pace of evolving technology and the uncertainties in the workplace norms.

This is the first time the Supreme Court has addressed a public employee’s expectation of privacy in the workplace as it relates to new forms of communication – specifically, text messaging, which is rapidly displacing traditional forms of communication. 

Sergeant Jeff Quon, a member of the City of Ontario’s SWAT team, was issued a police department-owned pager as part of a move to help members of the department coordinate quickly during emergency situations. 

While the City of Ontario has a robust electronic communications policy, issues of text messaging were not specifically addressed in writing. Qoun and others were informed verbally that their text messages were subject to the same policies and that they had no expectation of privacy or confidentiality when using these resources. In addition, Quon’s supervisor, Lieutenant Steve Duke, made verbal statements to Quon and others that personal use would not be audited if all overage charges were reimbursed to the City. However, Quon’s excessive messages were ultimately reviewed, leading Quon and three others to sue the City and lose at the trial court level. The jury specifically found the City’s justification of its audit of Quon’s text messages was to determine whether the existing character limit was too low for purposes of asking officers to pay for sending work related text messages. With this legitimate purpose, the trial court ruled that the search was legal and did not violate the officer’s Fourth amendment rights.

However, the U.S. Court of Appeals for the 9^th Circuit reversed the decision, ruling in part, that reading the messages without a clear written policy in place, combined with the Lieutenant’s statements regarding reimbursement for personal use, violated the officer’s Fourth Amendment protection against unreasonable searches. The Ninth Circuit also held that the City could have used less intrusive means to accomplish the purpose of the audit.  

The Supreme Court reversed the Court of Appeals in a unanimous opinion. While ruling in the City’s favor, the Court took great pains to attempt to limit the reach of its ruling. The Court opined that it must proceed with great care when considering the whole concept of privacy expectations in communications made on electronic equipment owned by a governmental employer. The Court further noted that courts risk error by elaborating too fully on the Fourth Amendment implications in light of the emerging technology before its role in society has become clear. Justice Scalia, in a concurring opinion, commented on the Court’s attempt to qualify its opinion by stating: “The times-they-are–a changin’ is a feeble excuse for disregard of duty.”

After carefully reviewing the facts of the case and its prior Fourth Amendment decisions, the Supreme Court ruled that the officer’s rights were not violated because the search was motivated by a legitimate work-related purpose and was not excessive in nature. Furthermore, the Court determined the search was not excessively intrusive. Only work related text messages were reviewed. Because the Court decided that Officer Quon had no expectation of privacy on company equipment, the Court also held that persons sending him text messages while he was on duty could not have an expectation of privacy either. Accordingly, his now former wife, a co-worker with whom he had a romantic relationship, and another coworker who also sued the City lost on appeal.

Employers everywhere can learn from this opinion, regardless of whether they are private or public. First, the Supreme Court reassured the power of having clear policies in place in the workforce that address employees’ expectations of privacy. Employees will have a lesser expectation of privacy if the employer’s policies are clear and explicitly communicated. This case could have turned in favor of the officer if the officer had not been told he had no expectation of privacy in text messages, just like his emails on his work computers. Second, the Court emphasized the nature of his law enforcement job should have put Qoun on notice that his work related text messages could subject him to legal review. Finally, employers would be wise to read the entire facts as set forth in this decision and avoid potential liability in this fast pace world of changing technology.

In this writer’s opinion, employers should adopt robust policies to encompass all forms of electronic communication and train on these policies frequently.