US Supreme Court Decides Text Messaging Case
While we normally do not report on United States Supreme Court decisions, we feel that the Court's recent decision issued on June 17, 2010 involving a public employee’s expectation of privacy concerning text messages merits discussion in view of our coverage of a recent NJ Supreme Court decision involving an employee's rights to privacy in Yahoo e-mails sent over the workplace computer. http://newjerseylawreview.blogspot.com/2010_04_01_archive.html
In a unanimous decision issued on June 17, 2010, the U.S. Supreme Court in City of Ontario, California v. Quon ventured into the privacy rights of public employees who transmit and receive text messages through government-owned electronic communication devices. In this particular case, the Court held that a California police department’s search of one of its police officer’s sexually explicit text messages sent and received through his department-issued pager did not violate the officer’s 4th Amendment constitution rights against unreasonable searches and seizures. The paging service carrier revealed the officer’s text messages (to his then-wife and his girlfriend, a police department employee) to the police department after the chief requested an audit of the department’s text message usage to determine whether the text character limit was sufficient to meet its officers’ work communications needs.
After an internal affairs investigation, the police department disciplined the officer, Jeff Quon. Quon and another police officer then sued the police department’s paging service provider (Arch Wireless) for privacy breaches. The wife and mistress also joined the lawsuit as plaintiffs. A jury sided with the defendants. However, the Ninth Circuit Court of Appeals reversed, holding that the search was unreasonable. The Supreme Court then agreed to review the Ninth Circuit's appellate court decision.
The police department maintained a written policy warning officers that use of department email, Internet and computer resources could be monitored. Although the police department permitted limited personal use of these resources, its policy also stated that officers should not expect that their electronic communications made through department resources were private or confidential. The officer Quon admitted he was aware that the policy applied to him, but argued that it did not include text messaging. Further, Quon argued that his employer permitted use of his pager for personal messages as long as he paid the over-limit charges on the account.
New Ground for the Supreme Court
This case marks the Supreme Court’s first venture into the arena of public employees’ electronic privacy rights in communications through public employer resources. The Court was asked to weigh the officers’ privacy rights and right to be free from unreasonable seizures of their communications against the government’s interest in managing the public workplace. Two decades ago, in Ortega v. O’Connor, the Supreme Court considered the search of a public employee’s desk. The Court held in that case that a public employer enjoys broad authority to search the physical workplace as long as the employer had a “work-related purpose” for the search and the search is not “unduly intrusive.”
In Quon, the Court now provides some limited guidance for a public employer’s right to search the cyber-workplace. Justice Kennedy’s opinion for the Court assumes that the officers held a reasonable expectation of privacy in their text messages. However, the Court did not conclusively resolve this issue and therefore public employers are free to argue in future cases that a public employee does not have an expectation of privacy in electronic communications facilitated with agency resources. The Court easily identified a work-related purpose for reading the text messages. The department “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.” The Court noted that the officers held, at best, only "a limited privacy expectation" in the text messages. Justice Stevens wrote that Quon “should have understood that all of his work-related actions–including all of his communications on his official pager — were likely to be subject to public and legal scrutiny.” The Court held that the search was not excessive in scope, and that therefore the search was reasonable.
Quon also puts agencies on notice that they must provide a written agency policy up front, train employees on the policy, and be very careful to have the policy-monitoring capability to stay on top of developments in this rapidly-evolving area of the law. An agency without a solid policy, backed by constant monitoring, is asking for trouble when it comes time to enforce or defend the policy. Policy issues such as work-related social media, email and Internet use are rapidly changing.
After an internal affairs investigation, the police department disciplined the officer, Jeff Quon. Quon and another police officer then sued the police department’s paging service provider (Arch Wireless) for privacy breaches. The wife and mistress also joined the lawsuit as plaintiffs. A jury sided with the defendants. However, the Ninth Circuit Court of Appeals reversed, holding that the search was unreasonable. The Supreme Court then agreed to review the Ninth Circuit's appellate court decision.
The police department maintained a written policy warning officers that use of department email, Internet and computer resources could be monitored. Although the police department permitted limited personal use of these resources, its policy also stated that officers should not expect that their electronic communications made through department resources were private or confidential. The officer Quon admitted he was aware that the policy applied to him, but argued that it did not include text messaging. Further, Quon argued that his employer permitted use of his pager for personal messages as long as he paid the over-limit charges on the account.
New Ground for the Supreme Court
This case marks the Supreme Court’s first venture into the arena of public employees’ electronic privacy rights in communications through public employer resources. The Court was asked to weigh the officers’ privacy rights and right to be free from unreasonable seizures of their communications against the government’s interest in managing the public workplace. Two decades ago, in Ortega v. O’Connor, the Supreme Court considered the search of a public employee’s desk. The Court held in that case that a public employer enjoys broad authority to search the physical workplace as long as the employer had a “work-related purpose” for the search and the search is not “unduly intrusive.”
In Quon, the Court now provides some limited guidance for a public employer’s right to search the cyber-workplace. Justice Kennedy’s opinion for the Court assumes that the officers held a reasonable expectation of privacy in their text messages. However, the Court did not conclusively resolve this issue and therefore public employers are free to argue in future cases that a public employee does not have an expectation of privacy in electronic communications facilitated with agency resources. The Court easily identified a work-related purpose for reading the text messages. The department “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.” The Court noted that the officers held, at best, only "a limited privacy expectation" in the text messages. Justice Stevens wrote that Quon “should have understood that all of his work-related actions–including all of his communications on his official pager — were likely to be subject to public and legal scrutiny.” The Court held that the search was not excessive in scope, and that therefore the search was reasonable.
The Quon decision signals that the continued development of electronic communications through use of ever-changing technology of smart phones, text messages, social media websites, blogs, photo-sharing and file-sharing websites, and the like are fair game for battles over who controls privacy rights for communications posted or sent by public employees using some government resources.
Quon also puts agencies on notice that they must provide a written agency policy up front, train employees on the policy, and be very careful to have the policy-monitoring capability to stay on top of developments in this rapidly-evolving area of the law. An agency without a solid policy, backed by constant monitoring, is asking for trouble when it comes time to enforce or defend the policy. Policy issues such as work-related social media, email and Internet use are rapidly changing.
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Mike
KANSAS LAWYER