Supreme Court Declines to Address Employees’ Expectation of Privacy in Text Messages

January 1, 0001


The Supreme Court yesterday passed on an opportunity to articulate a standard for employees’ reasonable expectations of privacy in text messages transmitted on employers’ electronic devices. Reversing the Ninth Circuit, the Court held that, even assuming a reasonable expectation of privacy, a municipal employer’s search of its employee’s text messages was reasonable under the Fourth Amendment. City of Ontario v. Quon, No. 08-1332, slip op., (U.S. Jun. 17, 2010). In bypassing the threshold issue of an employee’s privacy expectations, Justice Kennedy cited the difficulty predicting “how employees’ privacy expectations will be shaped by [technological] changes” or “the degree to which society will be prepared to recognize those expectations as reasonable” as justifying narrower grounds for decision. Id. at 11. In a partially concurring opinion, Justice Scalia warned that the majority’s speculation as to the scope of employees’ Fourth Amendment rights, in a case where determining the scope of those rights was not necessary, would lead to lower courts being “bombard[ed] . . . with arguments about employer policies, how they were communicated, and whether they were authorized, as well as the latest trends in employees’ use of electronic media.” City of Ontario v. Quon, No. 08-1332, slip op., at 3 (U.S. Jun. 17, 2010) (Scalia, J. concurring in part and dissenting in part). Although the Court sidestepped the question of employees’ privacy expectations in text messages, the majority’s decision conveys a thoughtful recognition of how technological developments may be understood to impact the development of the case law, an important acknowledgement for courts deciding electronic discovery issues.

This case arose out of incidents in 2001 and 2002 involving respondent Jeff Quon, a police sergeant for the City of Ontario, California and a member of the Ontario Police Department (“OPD”)’s Special Weapons and Tactics (SWAT) Team. Quon, slip op. at 1-2. Quon exceeded his monthly text messaging limit on the number of characters sent or received on his City-issued pager, intended for use in connection with his SWAT duties, and as a result additional fees were incurred by the City under its contract with the wireless provider, Arch Wireless. Id. at 2. The OPD subsequently conducted an audit of text messages by sent by Quon. Id. at 3-4. After determining that many of the messages sent by Quon were not work related, and some were in fact sexually explicit, Quon was referred for internal investigation and, allegedly disciplined for his behavior. Id. at 4.

Quon filed suit against the petitioners (including Arch Wireless and the OPD) in the United States District Court for the Central District of California under Rev. Stat. § 1979, the Stored Communications Act (SCA), 18 U.S.C. §2701 et seq., 42 U.S.C. § 1983, and California law, alleging that petitioners violated both respondents’ Fourth Amendment rights and the SCA by obtaining and reviewing transcripts of Quon’s text messages. Id. at 5. On summary judgment, the District Court denied petitioners’ summary judgment motion on the Fourth Amendment claims. Id. The Court relied on the plurality test in O’Connor v. Ortega, 480 U.S. 709, 711 (1987), to find that Quon had a reasonable expectation of privacy in the content of his messages. It then held a jury trial to determine whether the OPD’s audit of Quon’s messages was reasonable under the Fourth Amendment. Id. The jury found that it was, because Chief Scharf’s intent in ordering the audit was to ensure that the existing character limit was adequate for officers’ work-related purposes, rather than to investigate whether Quon was “play[ing] games” or “wast[ing] time.” Id. at 5-6. On appeal, a divided panel of the Ninth Circuit reversed in part. 529 F.3d 892 (2008). The panel applied the O’Connor plurality test and affirmed the District Court as to Quon’s expectation of privacy, but determined that the OPD’s audit was unreasonable largely because there were “less-intrusive means” by which the OPD could have verified the efficacy of the character limit. Quon, slip op. at 6.

Assuming for purposes of the opinion that Quon had a reasonable expectation of privacy in his text messages, the Supreme Court held first that the City’s search was reasonable because there were legitimate work-related grounds for a non-investigatory search (i.e., to determine, in light of Quon’s overages, if the quantity of monthly texts allotted to employees was appropriate). Id. at 12-13.

Second, the Court held that the scope of the search -- the review of two months’ worth of text messages sent by Quon during on-duty hours -- was reasonable because it was an “efficient and expedient way to determine” if Quon’s overages were for business or personal use. Id. at 13. According to the Court, the Ninth Circuit erred in finding that the OPD audit was not reasonable because other, less intrusive alternative were available; such an approach might raise impossible barriers to the use of “virtually all search-and-seizure powers.” Id. at 15.

The Court’s decision leaves many open questions regarding employees’ use of employer-issued electronic devices, noting the importance of the issue even while deferring it for another day:

Cell phone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, or even self-identification….On the other hand, the ubiquity of these devices has made them generally affordable, so one could counter that employees who need cell phones or similar devices for personal matters can purchase and pay for them for their own.

Id. at 11. Though dicta, this aspect of the Court’s ruling will likely be featured in subsequent caselaw involving access to electronic communications, such as disputes over their preservation, discoverability or privilege.

Given that the opinion leaves many issues unresolved, how should employers handle employee text messaging in the meantime? Since the Supreme Court expressly observed that “employer policies concerning communications will of course shape the reasonable expectations of their employees, especially to the extent that such policies are clearly communicated,” id. at 11, employers should review any existing policies that might apply to employee text messaging. Employers should consider implementing policies that:

    • explicitly address text messages or define “electronic communications” broadly enough to include them; 
    • provide that there is no reasonable expectation of privacy in the messages;
    • are acknowledged in writing by employees; and
    • address preservation of text messages in the event of a duty to preserve.