Supreme Court Report
Is it a privacy violation to review messages on a work-issued pager?
Posted Mar 1, 2010 3:30 AM CST
By Mark Hansen
When the Ontario, Calif., police department issued text-messaging pagers to its SWAT team members in late 2001 or early ’02, the city had no formal policy governing their use. What it had was a general computer usage policy saying the use of city-owned property to access the Internet and the e-mail system was not confidential and was subject to review at any time. All employees were required to acknowledge it in writing.
At the time, though, Lt. Steven Duke, who was in charge of the pagers, cut a deal with members of the SWAT team: Just pay for any charges in excess of the department’s monthly 25,000-per-pager character limit with the service provider. Their messages wouldn’t have to be inspected to determine which were work-related and which were personal.
The arrangement got off to a rocky start. The first few months several SWAT team members went over their monthly character limit several times, and Duke soon grew weary of his role as the bill collector.
When he said as much at a staff meeting with police Chief Lloyd Scharf in August 2002, the chief ordered a review of the messages of the two team members with the highest overages the previous month to find out if the pagers were being used primarily for business or personal matters.
PRIVATE CONDUCT EXPOSED
The review showed that one of the two officers, Sgt. Jeff Quon, had exceeded his allotted character limit that month by more than 15,000 characters. A transcript of his messages, which was 46 pages long, also showed that only 57 of the more than 450 text messages he sent or received were for official police business. The remainder were not only personal but in many cases sexually explicit.
The discovery prompted the chief to refer the matter to internal affairs for an investigation into possible misconduct. It also prompted Quon and three other department employees with whom he had exchanged text messages—Quon’s wife, Jerilyn, who was also a city police officer; dispatcher April Florio, with whom Quon apparently was having an affair; and fellow SWAT team member Sgt. Steve Trujillo—to file a federal lawsuit against the city, the police department and Scharf for allegedly violating their Fourth Amendment rights to privacy.
The case, Ontario v. Quon, which will be argued before the U.S. Supreme Court this term, opens a new frontier in Fourth Amendment jurisprudence. It also could lead to new rules governing employee privacy rights in the workplace, some experts say.
Although the case involves a public employer, it raises a question that comes up often in public and private workplaces these days: Are there any limits to how far employers can go to monitor the electronic communications of their employees?
And while the Fourth Amendment doesn’t protect private employees, the outcome could be highly influential on the private sector, where the courts generally have followed similar standards in analyzing invasion-of-privacy claims against private employers.
George Washington University law professor Orin Kerr, an authority on Fourth Amendment rights in new technology, says he was surprised to learn that the court agreed to hear the case because the standard for government employee privacy rights is very fact-specific and because no other circuit has yet to address the issue of privacy in text messaging.
However, the case came from the San Francisco-based 9th U.S. Circuit Court of Appeals, which saw an ideological split among the judges. Kerr referred to “that old 9th Circuit magic,” his way of describing what happens when a group of conservative judges registers a vigorous objection to something a liberal panel of judges has done.
The Supreme Court “tends to look at those cases pretty closely,” he says.
The trial judge ruled against the plaintiffs. The court found that the officers had a reasonable expectation of privacy in their messages in light of the lieutenant’s informal policy not to review them if the officers paid for the overages. However, the court concluded that a search of Quon’s pager was nonetheless reasonable because a jury had found that the chief was only trying to determine the adequacy of the 25,000-character limit, not to uncover possible misconduct.
But the 9th Circuit reversed, saying not only that the plaintiffs had a reasonable expectation of privacy in their messages—given what they had been told by their supervisor—but that the search of Quon’s pager was unreasonable because the department had other, less intrusive methods of finding out whether the 25,000-character limit was adequate short of reviewing all of his messages.
That decision by a liberal three-judge panel caused an uproar in the circuit, where a number of conservative judges petitioned the full court to rehear the case. And although a majority of the court’s active judges voted to deny the petition for rehearing, six of them signed on to a stinging dissent by Judge Sandra Ikuta.
The dissent accused the panel of adopting a standard that makes it exceptionally difficult for public employers to go about the business of running government offices. In doing so, it said the decision conflicts with both Supreme Court precedent and the holdings of seven other circuits.
“By holding that a SWAT team member has a reasonable expectation of privacy in the messages sent to and from his SWAT pager, despite an employer’s express warnings to the contrary and ‘operational realities of the workplace’ that suggest otherwise, and by requiring a government employer to demonstrate that there are no more less intrusive means available to determine whether its wireless contract was sufficient to meet its needs, the panel’s decision is contrary to ‘the dictates of reason and common sense’ as well as the dictates of the Supreme Court,” Ikuta wrote.
Judge Kim M. Wardlaw, who had written the panel’s decision, responded in kind, saying the dissent selectively recites facts to support its disagreement with the outcome of the panel’s Fourth Amendment analysis. “No poet ever interpreted nature as freely as Judge Ikuta interprets the record on this appeal,” she wrote.
But Quon and the others contended that the panel’s decision amounted to nothing more than a “straightforward application” of the factors spelled out in O’Connor v. Ortega, the 1987 Supreme Court case that created the modern framework for analyzing public employee privacy rights. They said the city was appealing the decision only because it didn’t like the outcome.
In O’Connor, which dealt with a physical search of a hospital psychiatrist’s office, the court recognized that public employees have some privacy rights but said they should be evaluated according to the “operational realities of the workplace.”
However, some labor and employment defense lawyers have an entirely different perspective on the case.
John Coleman III, a Birmingham, Ala., lawyer who has successfully defended employers at trial in dozens of cases over the past 30 years, says he would be “floored” if the Supreme Court overturns Quon.
“The employer basically shot itself in the foot here,” Coleman says.
Yet workplace rights advocates admit to being more than a little concerned by the Supreme Court’s decision to take the case.
Lewis Maltby, president of the National Workrights Institute, says nobody believes the court granted cert to extend the 9th Circuit ruling nationwide. But he hopes it won’t disturb what he sees as the lower court’s two core holdings: That employees should be able to rely on what their bosses tell them, and that the scope of any search should be reasonably related to the objectives of the search and not be excessively intrusive.
“Anything less,” Maltby says, “would effectively take O’Connor off the books, which essentially is what the petition for cert is asking them to do.”
Quon retired from the police force with a back injury and moved to Arizona, where he works for a contractor teaching law enforcement techniques to Iraqis, says his attorney, Michael McGill of Upland, Calif.
McGill says he hopes the court will affirm the 9th Circuit and use the occasion to explain how the Fourth Amendment applies to the use of present-day technology in the workplace. But he worries that the justices might reverse it and take the opportunity to make some broad pronouncement that could affect the privacy rights of all employees.
“That,” he says, “would be backtracking on more than 20 years of case law.”