Quon, the Supreme Court, and Text Message Privacy

Sometimes our expectations about anticipated decisions of the United States Supreme Court are very high, primarily due to media characterizations of the impact the decision will have, and are are not met when the actual decision is made.  The just-decided case of City of Ontario v. Quon is such a case, especially for employment lawyers and privacy advocates.  The Ninth Circuit Court of Appeal found that police officer Quon had an absolute right of privacy in text messages sent using his work pager during business hours.  When the Supreme Court accepted the case for review, expectations were high.  Instead, Justice Kennedy, writing for the court, found that there was nothing new to decide:  he and the other justices assumed Quon possessed a right of privacy, but found that his employer’s (Ontario Police Department) search of his text messages was entirely reasonable, and did not violate his rights.  So what do the employment lawyers and privacy advocates learn from the case?  In short, that a reasonable search for a legitimate work-related purpose will not amount to a violation of an employee’s Fourth Amendment rights.

Quon may or may not have had a right of privacy in those text messages.  On the one hand, the police department had a clear policy on e-mail and computer usage – the employee has no right of privacy.  And, the department had made clear that the policy applied to text messages.  But Quon, who over-used his allotted character quantity, had been told his messages would not be audited if he simply paid each month for his over-use.  The Supreme Court said, in effect, it does not matter:  assuming he has a right of privacy, the search is nevertheless justified under long-standing precedent based on the “special needs of the workplace.”  Even if the employee has a privacy right to the messages, or a locker or desk, a search for a “noninvestigatory, work-related purpose” or for the “investigation of work-related misconduct” is reasonable if (i) it is justified at the inception and, (ii) the search is reasonably related to the objective.

A search may be justified “at the inception” if, for example, the employer has reasonable grounds for suspecting that the search is necessary for an appropriate purpose.  In Quon’s case, the evidence established that the search was important to the department’s investigation of whether the character limit on text messages was appropriate.  The City and the police department had a legitimate interest “in ensuring that employees were not being forced to pay out of their own pockets for work-related messages, or on the other hand that the City was not paying for extensive personal communication.”  In addition, as to the scope of the search, examining the message for content was reasonably related to the purpose of the search.  It is important to note that in conducting its inspection the police department did not examine any messages sent during off-duty hours.

Justice Kennedy’s decision applies to both public and private employers.  He states: 

Because the search was motivated by a legitimate work-related purpose, and because it was not excessive in scope, the search was reasonable …For these same reasons—that the employer had a legitimate reason for the search, and that the search was not excessively intrusive in light of that justification—the Court also concludes that the search would be “regarded as reasonable and normal in the private-employer context…"

Thus, no violation of the Fourth Amendment.  An interesting aspect of the case is Justice Scalia’s concurring opinion criticizing Justice Kennedy for explaining the many reasons why the Court should not make a more absolute pronouncement in the area of electronic communications and privacy.  For a glimpse at the philosophical differences in the approaches of Justices Kennedy and Scalia, read Scalia’s concurring opinion, here.

Stephen C. Gerrish, Employment Group