U. S. Supreme Court Upholds Public Employer’s Search of Employee Text Messages
In City of Ontario v. Quon, the Supreme Court overturned a Ninth Circuit Court of Appeals decision and ruled in favor of the employer, the City of Ontario, ruling that the employer’s search of an employee’s text messages was reasonable and not in violation of the Fourth Amendment.
Quon worked for the City of Ontario as a police sergeant and was a member of the Ontario Police Department’s SWAT Team. The City issued two-way pagers to Quon and other officers in the department. Prior to acquiring the pagers, the City instituted a policy that informed employees that they should have no expectation of privacy or confidentiality when using these resources. Quon signed a statement acknowledging his receipt and understanding of the policy. In addition, the City informed employees, including Quon, that it would treat text messages the same way as it treated e-mails.
When Quon and other officers exceeded their monthly character limits for several months in a row, the department Chief sought to determine whether the character limit was too low. The wireless provider gave the City transcripts of Quon’s and another employee’s text messages for a two month period. After reviewing the transcripts, it was discovered that many of Quon’s messages were not work-related, and some were sexually explicit. An internal investigator redacted Quon’s messages that were communicated during non-work hours, however, the majority of his messages transpired while he was on duty. Quon was disciplined for violating department rules.
Quon sued the department and the City alleging violation of his Fourth Amendment rights. The district court granted summary judgment in favor of the City, finding no Fourth Amendment violation. The Ninth Circuit reversed.
The Supreme Court reversed the Ninth Circuit decision and held that Quon’s Fourth Amendment rights were not violated. More specifically, the Court held that the City’s review of Quon’s text messages was reasonable because it was motivated by a legitimate work-related purpose and because it was not excessive in scope. Thus, assuming Quon had some privacy expectation in his messages, that privacy was not unreasonably violated.
The Court did not resolve the parties’ disagreement over Quon’s privacy expectation or whether the individuals who sent messages to Quon had a reasonable expectation of privacy in their messages. The Court refused to draw any bright lines regarding privacy expectations in electronic communications, noting that communication technology is constantly changing and it’s unknown how workplace norms or the law’s treatment of them will evolve. However, the Court held that on the facts before it, the search was reasonable and there was no Fourth Amendment violation.
In light of this narrowly tailored decision, employers should seek legal counsel before investigating employee communications in order to ensure that the investigation is legally sound. Employers should also review their communication policies to ensure that employees are sufficiently informed that they do not have an expectation of privacy in communications sent or received on employer provided systems.
