Sherry F. Colb

The Supreme Court Denies A Public Employee's Privacy in Electronic Communications: What's Next?

By SHERRY F. COLB
Tuesday, July 6, 2010

Last month, in Ontario v. Quon, the U.S. Supreme Court held that a government employer, in the circumstances present in the particular case, could read an employee's text messages on an employer-issued pager without violating the Fourth Amendment.

It should surprise no one that a government employer can sometimes lawfully read an employee's texts. The surprise in Quon lies, instead, in what the Court suggests about the likelihood of its adjudicating workplace electronic privacy in the future.

The Court indicates that electronic-communications technology is in such a state of flux that it might be best for the Justices to refrain from answering Fourth Amendment questions in the area. In this column, I evaluate the wisdom of such judicial "restraint."

The Facts of Quon

In Quon, the City of Ontario, California (which I will refer to as "Ontario" or "the City") acquired alphanumeric pagers that could send and receive text messages. Ontario agreed with its service provider, Arch Wireless ("Arch"), that there would be a character limit: Whenever pagers were used for messages that included more than the specified number of characters during the course of a month, Ontario would pay Arch a surcharge for the extra usage.

Ontario then distributed the pagers to police officers in the Ontario Police Department (OPD), including Jeff Quon -- a sergeant and a member of OPD's Special Weapons and Tactics (SWAT) Team.

At a staff meeting, the City made it clear to employees -- including Quon -- that it would treat text messages in the same way as it treated emails. Its express policy with respect to emails, in turn, was that the City "reserves the right to monitor and log … e-mail and Internet use, with or without notice. Users should have no expectation of privacy or confidentiality when using these resources."

After getting his pager, Quon went on to send and receive text messages that, for several months, exceeded the specified character limit, thus incurring extra fees for Ontario. The City's initial response was to offer Quon the option of paying the extra fees himself, an option which he took.

After several additional months of Quon's exceeding the character limit (and reimbursing the City for his excess use), OPD decided to look into whether the character limits were too low and needed to be raised to accommodate necessary usage, so that employees would not have to pay out-of-pocket for work-related texts.

To make this determination, OPD contacted Arch and obtained transcripts of the text messages of Quon and of one other employee for two of the months during which they had each exceeded the usage limit. After OPD's review of the transcripts, it emerged that most of the messages sent and received on Quon's pager were not work-related, and that some were sexually-explicit.

At this point, the matter was turned over to Internal Affairs review, during which the officer in charge of the review redacted the text transcripts to eliminate messages that Quon had sent and received while off-duty. The review revealed that an overwhelming majority of Quon's text messages during working hours, for the two months in question, were not work-related. Subsequently, Quon alleges, he was disciplined for violating OPD rules.

An Unsympathetic Party Before the Court

It is difficult to be very sympathetic to Jeff Quon's predicament. The purpose of the officers' having pagers is to facilitate their speedy responses to emergencies while on the job. Quon is a police officer, charged with serving and protecting the public. The image of a sergeant sending a large number of sexually-explicit text messages, instead of working to promote the safety of the community, is likely to disturb anyone who values law and order.

Furthermore, those who might ordinarily champion the privacy of an individual facing the might of the State, could well feel unmoved by the plight of a police sergeant and SWAT team member who sought to violate the police department's own rules with impunity. Officers who consider themselves "above the law" in pursuing their own personal dalliances are darlings of neither the left nor the right -- a fact that may help explain the absence of any dissenting opinions from the Supreme Court in this case.

To make matters worse for Quon, he and his fellow officers had received an explicit warning that the text messages that were sent and received on the pagers were subject to review. The pagers were quite plainly to be used for work-related purposes.

And Quon's personal use of the pager was hardly trivial. In August 2002, one of the two months studied, Quon reportedly sent or received 456 text messages during work hours, only 57 of which were work-related. On an average workday, he sent or received 28 messages, of which only 3 were related to police business.

Finally, a jury found that in deciding to examine Quon's messages, OPD was motivated by the legitimate desire to determine whether the existing character limits (in Ontario's contract with Arch) were too low and were thus resulting in officers' having to pay work-related expenses out of their own pockets.

Though the Outcome in Quon was Unremarkable, the Reluctance to Address Electronic Privacy is Troubling

For the reasons discussed above, then, the outcome in Quon is neither alarming nor obviously incorrect. The employee here was not supposed to use his pager for personal communications; the government employer explicitly warned employees that they could expect no privacy in their text messages; and, prior to examining Quon's texts, OPD had ample reason to conclude either that its contract with Arch was unfair to its employees, or that some of its employees -- Quon, in particular -- were violating departmental rules.

Yet the Court did not simply state that Quon had to lose the case. It instead made statements that should inspire concern about the Court's willingness to adjudicate important issues concerning the privacy of electronic communications from governmental intrusion.

To its credit, the Court reaffirmed its commitment to the principle that the Fourth Amendment protects individuals from unreasonable searches and seizures, even when the government is acting as an employer. The Court then discussed the lack of any majority opinion specifically covering what the Fourth Amendment actually prohibits in workplace settings -- though it noted with approval that in the main case in point, O'Connor v. Ortega, a majority of Justices accepted that the workplace context "make[s] the warrant and probable-cause requirement impracticable for government employers."

Significant ambiguity remains, however, as to which of several interpretations of the O'Connor decision is correct. Moreover, it is not clear whether O'Connor is even good law anymore -- and the Court declined in Quon to say, one way or another.

Accordingly, the Court has left employees, employers, and lower courts without a framework within which to analyze the right against unreasonable searches and seizures that the Court acknowledges we still retain in the workplace. We can expect the Court to clarify things in future workplace Fourth Amendment cases. In the electronic realm, however, such an expectation may go unfulfilled.

Justice Kennedy wrote for a majority that:

"The Court must proceed with care when considering the whole concept of privacy expectations in communications made on electronic equipment owned by a government employer. The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear…. Prudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices."

Rather than simply stating that the instant case does not call for an elaboration of workplace privacy expectations, electronic or otherwise, the Court instead betrays here a reluctance to address the electronic privacy question at all. One might thus expect that the Justices will abstain from addressing this issue with clarity for the foreseeable future.

Justice Scalia's Critique of the Court's Avoidance Plan

Justice Scalia offers a far more helpful approach to the issues in Quon than the majority does, though he reaches the same result in the case.

First, Justice Scalia explains the proper framework for deciding whether an employee at a government job enjoys a reasonable expectation of privacy in electronic communications on government-issued pagers. He says that the proper question is "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."

In other words, in Justice Scalia's view, to determine whether an individual at a government job enjoys a reasonable expectation of privacy in text messages, the right question to ask is whether employees more generally -- including those who work at private companies -- enjoy such an expectation of privacy.

If individuals in a private firm's workplace can reasonably expect such privacy, then it would presumably follow that so, too, can public employees. Unlike Justice Scalia, the Court does not offer any framework for thinking about whether a public employee (whose circumstances may differ substantially from Quon's) enjoys a Fourth Amendment right in the privacy of his or her electronic communications.

Justice Scalia then sharply criticizes the Court's expressed reluctance to wade into the issue of electronic communications. He says:

"Applying the Fourth Amendment to new technologies may sometimes be difficult, but when it is necessary to decide a case we have no choice. The Court's implication … that where electronic privacy is concerned we should decide less than we otherwise would (that is, less than the principle of law necessary to resolve the case and guide private action) -- or that we should hedge our bets by concocting case-specific standards or issuing opaque opinions -- is in my view indefensible. The times-they-are-a-changin' is a feeble excuse for disregard of duty."

We cannot tell from Justice Scalia's words how he would ultimately decide the questions of whether, and to what extent, the Fourth Amendment places limits on government employers' license to read government employees' personal electronic messages sent on employer-provided devices. Yet we do know how he would think about the questions, and we know, too, that he would answer them when they squarely arose.

That a member of the Court will reliably and clearly elucidate what the law is when called upon to do so is the least we ought to be able to expect from a Supreme Court Justice. It is disappointing to learn that when it comes to electronic privacy at government jobs, we can now reasonably expect it only from Justice Scalia.


Sherry F. Colb, a FindLaw columnist, is Professor of Law and Charles Evans Hughes Scholar at Cornell Law School. Her book, When Sex Counts: Making Babies and Making Law, is available on Amazon.

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