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Supreme Court Finds Search Of Employees' Text Messages Was Reasonable


Mealey's Litigation Report: Cyber Tech & E-Commerce July 2010


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Mealey's Litigation Report: Cyber Tech & E-Commerce

July 2010

12-5 Mealey's Litig. Rep. Cyber Tech & E-Com. 1 (2010)

SECTION: Volume 12, Issue #5

HEADLINE: Supreme Court Finds Search Of Employees' Text Messages Was Reasonable


A police department's search of the transcripts of its employees' text messages was reasonable and did not violate the employees' Fourth Amendment rights, the U.S. Supreme Court ruled June 17, reversing a ruling by the Ninth Circuit U.S. Court of Appeals (City of Ontario, California, et al. v. Jeff Quon, et al., No. 08-1332, U.S. Sup.; 2010 U.S. LEXIS 4972; See May 2010, Page 23).
(Opinion available 24-100722-001Z )

Citing the principles of O'Connor v. Ortega (480 U.S. 709, 717 [1987]), the court found that the transcript search was reasonable "because it was motivated by a legitimate work-related purpose, and because it was not excessive in scope." Justice Anthony M. Kennedy delivered the court's opinion.
Message Audit

The search occurred in 2002 as part of an audit of text messaging costs incurred by the employees of the Ontario Police Department in California on their department-issued pagers. Police Chief Lloyd Scharf and other department personnel looked at transcripts of text messages sent by department employees via pagers issued by the City of Ontario to determine whether their contractual character limit with Arch Wireless Operating Co. was sufficient and to make sure that the department was not unduly paying for extensive personal communications. They learned that Sgt. Jeff Quon, his then-wife and two other department employees had sent and received numerous personal text messages, many of which were sexual in nature. The identified texters sued the city, the Police Department, Scharf and others in the U.S. District Court for the Central District of California in February 2003, claiming violations of the Stored Communications Act (SCA) and the Fourth Amendment.

The District Court ruled that Arch had properly released the transcripts and that although the police officers had a reasonable expectation of privacy in their messages based on the department's privacy policy with regard to the pagers, the defendants were not liable for the search because they intended to uncover possible misconduct. The Ninth Circuit reversed in June 2008, finding that Arch had violated the SCA and that the transcript search was unreasonable. The city, Police Department and Scharf petitioned the high court, which granted certiorari in December.
O'Connor Principles

Per O'Connor, the court noted that "[i]ndividuals do not lose Fourth Amendment rights merely because they work for the government instead of a private employer." O'Connor established that a government employee's expectation of privacy is based on "[t]he operational realities of the workplace" and that "an employer's intrusion" of an expected privacy can be considered reasonable "for noninvestigatory, work-related purposes, as well as for investigations of work-related misconduct."

The court declined to specifically rule on whether Quon had a reasonable expectation of privacy, noting its concern at making such a decision in light of "[r]apid changes in the dynamics of communication and information transmission" and the uncertainty of "how workplace norms, and the law's treatment of them, will evolve." Stating its concern at "risk[ing] error by elaborating too fully" on such emerging technology, the court noted that the pervasiveness of text message and cellular communication is such "that some persons may consider them to be essential means or necessary instruments for self-expression" that might implicate further privacy concerns in the future.

However, the court assumed arguendo that Quon had a reasonable expectation of privacy for the purpose of determining if the transcript review was reasonable.
Not Excessively Intrusive

Even though warrantless searches are "per se unreasonable under the Fourth Amendment," the high court held that the department's review of the transcripts "was justified at its inception because there were 'reasonable grounds for suspecting that the search [was] necessary for a noninvestigatory work-related purpose." Namely, the department was trying to determine whether the text messages Quon sent in excess of his account's allotted amount were personal or work-related.

The court also held that the search was not "excessively intrusive" because it was limited in its scope by searching only two months' worth of messages. Additionally, the court noted that Quon had been told that his text messages were subject to auditing and thus should have been reasonably aware that the audit would require review of the messages' content.

The high court ruled that the Ninth Circuit "erred in finding the search unreasonable" by pointing to other ways to verify "the efficacy of the 25,000 character limit." And even if it was unreasonable for Arch to turn over the transcripts per the SCA, the petitioners' actions were not necessarily unreasonable in light of the department's reasonable motivation for the search.

"Because the search was reasonable, petitioners did not violate respondents' Fourth Amendment rights, and the court below erred by concluding otherwise," the Supreme Court ruled, reversing the Ninth Circuit's decision.
Concurring Opinions

Justice John Paul Stevens issued a brief concurring opinion, in which he noted that he joined with the court's opinion in full. However, he wanted "to highlight that the Court has sensibly declined to resolve whether the plurality opinion in" O'Connor was the proper "approach to determining an employee's reasonable expectation of privacy." Justice Stevens noted the validity of a dissenting opinion in O'Connor and a concurring opinion to that case offered by Justice Antonin Scalia.

Justice Scalia also offered a concurring opinion in the present case, referring to his O'Connor concurrence, calling the majority opinion in that case "standardless and unsupported" and taking issue with "[t]he Court's inadvertent boosting of the O'Connor plurality's standard" in the present case. Justice Scalia opined that "[i]n this case, the proper threshold inquiry should be not whether the Fourth Amendment applies to messages on public employees' employer-issued pagers, but whether it applies in general to such messages on employer-issued pagers." However, Justice Scalia agreed that the matter need not be decided at present and agreed with the court's judgment in the present case.

Kent L. Richland of Greines, Martin, Stein & Richland in Los Angeles represents the city and the other defendants. Michael A. McGill and Dieter C. Dammeier of Lackie, Dammeier & McGill in Upland, Calif., and Bruce Emery Disenhouse of Kinkle, Rodiger and Spriggs in Riverside, Calif., represent Quon and the other respondents.
(Additional documents available: Oral argument transcript 24-100520-004T
Petitioners' brief 24-100218-037B
Respondents' brief 74-100326-040B
United States' amicus brief 24-100218-038B
Ninth Circuit ruling 24-080624-102Z )

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Court ruling: http://tinyurl.com/2d44jbv
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