Text Messaging Heard By the Supreme Court

The U.S. Supreme Court on April 19 wrestled with the privacy expectations of public employees in a case involving workplace monitoring of text messages.

By the end of arguments in City of Ontario, Calif. v. Quon, some justices, unfamiliar at first with the ins and outs of text technology, appeared better informed, but Jeffrey Quon's expectation of victory appeared to decline.

Sexy Texts

Since roughly December 1999, Ontario has had a written policy warning employees not to expect privacy in their communications on city-owned computers and associated equipment. The policy, which was signed by Quon, allowed limited “light” personal use and reserved the right to monitor and log all network activity.

In 2001, the city obtained pagers from a wireless operating company, which contracted to maintain the system. Quon and other SWAT team members were given the pagers. They were told by supervisors that the text messages were considered e-mail and were subject to the city's no privacy policy and possible audit.

Quon exceeded the character limit on his pager several times. A supervisor told him that he would not audit the overages to see if they were work-related but that Quon could pay for the overages, which Quon did.

While on duty, Quon used his department-issued text-messaging pager to exchange hundreds of personal messages ' many sexually explicit ' with, among others, his wife, his girlfriend, and a fellow SWAT sergeant, according to the city's high court counsel, Kent Richland, partner in Los Angeles' Greines, Martin, Stein & Richland.

In August 2002, after Quon and another officer had exceeded the character limit, the police chief ordered a review of their message transcripts to determine, the city contended, if the limit was too low. The review showed that Quon received on average 28 transmissions during his shift, only three of which were work-related. He was reported for violating the department's policy on use of the pagers.

Quon, his wife, the girlfriend and his colleague sued the city, the police department and certain officials in federal district court in the Central District of California. They alleged their Fourth Amendment rights were violated by the review of the text messages.

The district court found that Quon had a reasonable expectation of privacy under a test announced by the Supreme Court in its 1987 decision, O'Connor v. Ortega, 480 U.S. 709 (1987) (available at www.oyez.org/cases/1980-1989/1986/1986_85_530). Under that test, a government employee's expectation of privacy must be one “that society is prepared to consider reasonable” under the “operational realities of the workplace.”

Applying that standard, the district court said Quon's expectation was reasonable because a supervisor had said he would not enforce the general computer policy. The court then submitted to a jury the question of whether the city's review of the messages was reasonable under the circumstances. The jury said yes, because the purpose was to determine the effectiveness of the character limit, not to ferret out misconduct.

Quon appealed the jury verdict on the reasonableness of the search. The Ninth U.S. Circuit Court of Appeals reversed, finding that the scope of the search was unreasonable because it was excessively intrusive and that Quon and the other three plaintiffs all had a reasonable expectation of privacy in their messages.

Before the Justices

At oral argument, Ontario's counsel, Kent Richland, a partner in the Los Angeles firm Greines, Martin, Stein & Richland, told the Supreme Court justices that Quon had no reasonable expectation of privacy given that he had signed a written city policy that explicitly stated there were no privacy rights in the use of city computers and related equipment. He also said Quon and other SWAT team members were told when they subsequently received pagers that the e-mail and Internet use policy covered the pagers as well. And, he added, despite a supervisor's statement that the text messages would not be audited if the officers paid for any overages, that did not undermine the no-privacy policy.

“But we're dealing with Quon's reasonable expectations,” interjected Chief Justice John Roberts Jr. “Now, most people will say, well, if you're paying for them, they are yours. And it particularly covered messages off-duty. Now, can't you sort of put all those together and say that it would be reasonable for him to assume that private messages were his business? They said he can do it. They said you have got to pay for it. He used it off-duty. They said they are not going to audit it.”

Richland responded: “Not when he was told at the same time that these text messages were considered e-mail and could be audited, and that they were considered public records and could be audited at any time.”

Richland received support during the argument from Deputy Solicitor General Neal Katyal, who told the justices: “Millions of employees today use technologies of their employers under policies established by those employers. When a government employer has a no-privacy policy in place that governs the use of those technologies, ad hoc statements by a non-policy member cannot create a reasonable expectation of privacy.

“Put most simply, the computer help desk cannot supplant the chief's desk. That simple, clear rule should have decided this case.”

Katyal cautioned the Court about generalizing Fourth Amendment rules in this area because the technologies are “rapidly in flux” and expectations of privacy have not been as clearly formed as in traditional Fourth Amendment areas, such as homeowners putting trash to their curbs.

Quon's counsel, Dieter Dammeier of Lackie, Dammeier & McGill in Upland, CA, told the justices that the department's computer policy did not apply to pagers as written and only came into play much later at a meeting with the SWAT team when the lower-level supervisor modified it.

But the computer policy did apply to associated equipment, said Justice Ruth Bader Ginsburg, adding: “And if an employee is told, 'Now e-mails aren't private, so we are warning you, we can monitor them,' wouldn't such an employee expect the same thing to apply to the pager?”

The city writes the rules, answered Dammeier, and it is the city's responsibility to make clear to employees to what the rules apply. Here, he added, the supervisor gave the privacy guarantee to Quon: If you pay the overages, we're not going to look at the messages.

Justice John Paul Stevens also pressed Dammeier about the “basic background of a reasonable expectation of privacy.” He said these officers were SWAT team members; suppose they were answering 911 calls.

“Isn't there sort of a background expectation that sooner or later, somebody might have to look at communications for this particular kind of law enforcement officer?” he asked.

Dammeier said that while there may be circumstances that allow the public employer to look at those communications, they do not destroy the employee's reasonable expectation of privacy.

Dammeier and his opponent, Richland, also disagreed on whether the review of the messages by the city was reasonable even if Quon had a reasonable expectation.
The Ninth Circuit found the search “excessively intrusive.”

Richland said the review was reasonable because when the personal messages were discovered, they were redacted. The department only wanted to count the number of on-duty messages to determine whether the character allotment was appropriate. Dammeier insisted there were less intrusive ways to search, such as allowing the officers to count their own messages or to redact those that were not work-related.

Closely Watched

The Quon challenge is being watched closely by a broad range of litigators ' criminal defense, intellectual property, civil rights, employment, and others ' because the Supreme Court's decision could have significance not just for public employers, such as Ontario, but for private ones, and for discovery of evidence as well.

“I do think the footprint of the Supreme Court here, given the deference other courts will give to any decision, is potentially outside the Fourth Amendment-public employer context,” says Jonathan Moskin, partner in the New York office of Foley & Lardner and a member of the Board of Editors of our sibling publication The Intellectual Property Strategist (www.ljnonline.com/alm?ip).

“Courts already have been routinely citing to the Ninth Circuit decision in Quon in cases involving private employers and their employees,” explains Moskin, who represented the New York Intellectual Property Law Association in its amicus brief supporting the police officer.

“If the Supreme Court reverses, as is likely, it will be important for private sector employees to see exactly how the Court approaches the issue,” says employment litigator Daniel Prywes, partner in the Washington, DC, office of Bryan Cave.

Prywes says the traditional rule for the private sector is that employers have broad rights to monitor their employees' electronic communications, provided they give them advance notice that they have that right. “But all kinds of exceptions are being given by various courts,” he adds. “The hole in [the] donut keeps getting bigger and bigger. The decision in Quon may provide some pushback against this trend in the lower courts and state courts.”

Moskin and others supporting Quon are urging the Court to move slowly and to decide only this case on its facts.

“The law here is evolving so rapidly and there are inconsistencies,” he says. “Let the lower courts continue to resolve this. It's too soon to cast any judgment on what expectations of privacy society reasonably expects.”

The U.S. Supreme Court on April 19 wrestled with the privacy expectations of public employees in a case involving workplace monitoring of text messages.

By the end of arguments in City of Ontario, Calif. v. Quon, some justices, unfamiliar at first with the ins and outs of text technology, appeared better informed, but Jeffrey Quon's expectation of victory appeared to decline.

Sexy Texts

Since roughly December 1999, Ontario has had a written policy warning employees not to expect privacy in their communications on city-owned computers and associated equipment. The policy, which was signed by Quon, allowed limited “light” personal use and reserved the right to monitor and log all network activity.

In 2001, the city obtained pagers from a wireless operating company, which contracted to maintain the system. Quon and other SWAT team members were given the pagers. They were told by supervisors that the text messages were considered e-mail and were subject to the city's no privacy policy and possible audit.

Quon exceeded the character limit on his pager several times. A supervisor told him that he would not audit the overages to see if they were work-related but that Quon could pay for the overages, which Quon did.

While on duty, Quon used his department-issued text-messaging pager to exchange hundreds of personal messages ' many sexually explicit ' with, among others, his wife, his girlfriend, and a fellow SWAT sergeant, according to the city's high court counsel, Kent Richland, partner in Los Angeles' Greines, Martin, Stein & Richland.

In August 2002, after Quon and another officer had exceeded the character limit, the police chief ordered a review of their message transcripts to determine, the city contended, if the limit was too low. The review showed that Quon received on average 28 transmissions during his shift, only three of which were work-related. He was reported for violating the department's policy on use of the pagers.

Quon, his wife, the girlfriend and his colleague sued the city, the police department and certain officials in federal district court in the Central District of California. They alleged their Fourth Amendment rights were violated by the review of the text messages.

The district court found that Quon had a reasonable expectation of privacy under a test announced by the Supreme Court in its 1987 decision, O'Connor v. Ortega , 480 U.S. 709 (1987) (available at www.oyez.org/cases/1980-1989/1986/1986_85_530 ). Under that test, a government employee's expectation of privacy must be one “that society is prepared to consider reasonable” under the “operational realities of the workplace.”

Applying that standard, the district court said Quon's expectation was reasonable because a supervisor had said he would not enforce the general computer policy. The court then submitted to a jury the question of whether the city's review of the messages was reasonable under the circumstances. The jury said yes, because the purpose was to determine the effectiveness of the character limit, not to ferret out misconduct.

Quon appealed the jury verdict on the reasonableness of the search. The Ninth U.S. Circuit Court of Appeals reversed, finding that the scope of the search was unreasonable because it was excessively intrusive and that Quon and the other three plaintiffs all had a reasonable expectation of privacy in their messages.

Before the Justices

At oral argument, Ontario's counsel, Kent Richland, a partner in the Los Angeles firm Greines, Martin, Stein & Richland, told the Supreme Court justices that Quon had no reasonable expectation of privacy given that he had signed a written city policy that explicitly stated there were no privacy rights in the use of city computers and related equipment. He also said Quon and other SWAT team members were told when they subsequently received pagers that the e-mail and Internet use policy covered the pagers as well. And, he added, despite a supervisor's statement that the text messages would not be audited if the officers paid for any overages, that did not undermine the no-privacy policy.

“But we're dealing with Quon's reasonable expectations,” interjected Chief Justice John Roberts Jr. “Now, most people will say, well, if you're paying for them, they are yours. And it particularly covered messages off-duty. Now, can't you sort of put all those together and say that it would be reasonable for him to assume that private messages were his business? They said he can do it. They said you have got to pay for it. He used it off-duty. They said they are not going to audit it.”

Richland responded: “Not when he was told at the same time that these text messages were considered e-mail and could be audited, and that they were considered public records and could be audited at any time.”

Richland received support during the argument from Deputy Solicitor General Neal Katyal, who told the justices: “Millions of employees today use technologies of their employers under policies established by those employers. When a government employer has a no-privacy policy in place that governs the use of those technologies, ad hoc statements by a non-policy member cannot create a reasonable expectation of privacy.

“Put most simply, the computer help desk cannot supplant the chief's desk. That simple, clear rule should have decided this case.”

Katyal cautioned the Court about generalizing Fourth Amendment rules in this area because the technologies are “rapidly in flux” and expectations of privacy have not been as clearly formed as in traditional Fourth Amendment areas, such as homeowners putting trash to their curbs.

Quon's counsel, Dieter Dammeier of Lackie, Dammeier & McGill in Upland, CA, told the justices that the department's computer policy did not apply to pagers as written and only came into play much later at a meeting with the SWAT team when the lower-level supervisor modified it.

But the computer policy did apply to associated equipment, said Justice Ruth Bader Ginsburg, adding: “And if an employee is told, 'Now e-mails aren't private, so we are warning you, we can monitor them,' wouldn't such an employee expect the same thing to apply to the pager?”

The city writes the rules, answered Dammeier, and it is the city's responsibility to make clear to employees to what the rules apply. Here, he added, the supervisor gave the privacy guarantee to Quon: If you pay the overages, we're not going to look at the messages.

Justice John Paul Stevens also pressed Dammeier about the “basic background of a reasonable expectation of privacy.” He said these officers were SWAT team members; suppose they were answering 911 calls.

“Isn't there sort of a background expectation that sooner or later, somebody might have to look at communications for this particular kind of law enforcement officer?” he asked.

Dammeier said that while there may be circumstances that allow the public employer to look at those communications, they do not destroy the employee's reasonable expectation of privacy.

Dammeier and his opponent, Richland, also disagreed on whether the review of the messages by the city was reasonable even if Quon had a reasonable expectation.
The Ninth Circuit found the search “excessively intrusive.”

Richland said the review was reasonable because when the personal messages were discovered, they were redacted. The department only wanted to count the number of on-duty messages to determine whether the character allotment was appropriate. Dammeier insisted there were less intrusive ways to search, such as allowing the officers to count their own messages or to redact those that were not work-related.

Closely Watched

The Quon challenge is being watched closely by a broad range of litigators ' criminal defense, intellectual property, civil rights, employment, and others ' because the Supreme Court's decision could have significance not just for public employers, such as Ontario, but for private ones, and for discovery of evidence as well.

“I do think the footprint of the Supreme Court here, given the deference other courts will give to any decision, is potentially outside the Fourth Amendment-public employer context,” says Jonathan Moskin, partner in the New York office of Foley & Lardner and a member of the Board of Editors of our sibling publication The Intellectual Property Strategist (www.ljnonline.com/alm?ip).

“Courts already have been routinely citing to the Ninth Circuit decision in Quon in cases involving private employers and their employees,” explains Moskin, who represented the New York Intellectual Property Law Association in its amicus brief supporting the police officer.

“If the Supreme Court reverses, as is likely, it will be important for private sector employees to see exactly how the Court approaches the issue,” says employment litigator Daniel Prywes, partner in the Washington, DC, office of Bryan Cave.

Prywes says the traditional rule for the private sector is that employers have broad rights to monitor their employees' electronic communications, provided they give them advance notice that they have that right. “But all kinds of exceptions are being given by various courts,” he adds. “The hole in [the] donut keeps getting bigger and bigger. The decision in Quon may provide some pushback against this trend in the lower courts and state courts.”

Moskin and others supporting Quon are urging the Court to move slowly and to decide only this case on its facts.

“The law here is evolving so rapidly and there are inconsistencies,” he says. “Let the lower courts continue to resolve this. It's too soon to cast any judgment on what expectations of privacy society reasonably expects.”