Employment Law | Expert Legal Commentary
November 5, 2010
City of Ontario v. Quon: Limited Privacy Rights for Employer-Issued Equipment
City of Ontario v. Quon
Jeremy Gray of Zuber Lawler & Del Duca
The U.S. Supreme Court issued a narrow ruling regarding the privacy rights and expectations of public employees who use government-employer-issued technological equipment. In City of Ontario v. Quon, ___ U.S. ___, 130 S.Ct. 2619 (2010), the Supreme Court held that a police department’s audit of an employee’s text messages did not violate that employee’s Fourth Amendment rights. In a narrow ruling, the Court declined to specifically state that Quon had a reasonable expectation of privacy in the texts. Instead, it found that even if Quon did have a reasonable expectation of privacy, the search did not violate the Fourth Amendment.
Jeff Quon was a member of the City of Ontario Police Department’s SWAT team. In October 2001, the City purchased for SWAT team members pagers capable of sending and receiving text messages. Under the City’s contract, each pager had a maximum usage per month and any usage over that maximum incurred additional fees. Before buying the pagers, the City had in place a policy stating that employee e-mail and Internet usage was subject to City monitoring at all times. SWAT team members were notified orally, then in writing, that the texts on their pagers were subject to the same policy.
Quon began exceeding his monthly text allotment on his pager. After a warning, Quon continued to go over his monthly limit and, at the demand of the officer in charge, paid for the overage himself. After several more months of Quon going over the limit and paying the overages, the Police Chief was concerned that the monthly limit may be too low for SWAT team work-related needs and he ordered transcripts of Quon’s texts for a selected two months to see if the overage was related to work usage. Upon receipt, the Chief determined that many of the messages were not work-related and many were sexually explicit. The matter was turned over to internal affairs, which redacted all texts sent and received during off-work hours, but still determined that a substantial number of texts Quon sent and received during work hours were personal. The department disciplined Quon.
Quon and other individuals with whom Quon texted sued the City, alleging that its audit of his texts violated his Fourth Amendment rights and 42 U.S.C. section 1983, among other federal and state laws. The U.S. District Court found that although Quon had a reasonable expectation of privacy in his text messages, the City did not violate the Fourth Amendment in auditing those messages because the audit was performed for a legitimate business purpose.
The Ninth Circuit U.S. Court of Appeals reversed the District Court in part. The Circuit Court agreed that Quon had a reasonable expectation of privacy in the texts, but disagreed that the search was reasonable. Even though the Circuit Court conceded that the search may have served a “legitimate work-related rationale,” the Circuit Court determined that there were “less intrusive” means by which the City could have conducted the audit.
The U.S. Supreme Court was presented with two questions: 1) Whether Quon had a reasonable expectation of privacy in the text messages, and 2) If so, whether the police department’s audit of those messages violated the Fourth Amendment.
The City’s Text Audit Did Not Violate the Fourth Amendment
The Supreme Court previously addressed the issue of Fourth Amendment claims against government employers in O’Connor v. Ortega, 480 U.S. 709 (1987). There, the plurality in a split court set forth a two-part analysis: 1) Considering “[t]he operational realities of the workplace,” were an employee’s Fourth Amendment rights even implicated? In other words, the question of whether the employee even had a “reasonable expectation of privacy” was addressed on a case-by-case basis. 480 U.S. at 717. 2) If the employee did have a reasonable expectation of privacy, the employer’s search must be evaluated “by a standard of reasonableness under all the circumstances.” Id. at 725-726.
In Quon, the Supreme Court essentially side-stepped the first question, concluding that the City’s search of Quon’s text messages did not violate the Fourth Amendment whether or not he had a reasonable expectation of privacy, as measured by any test. Id. at 2632-2633.
The City had argued that its policy that all messages were subject to monitoring removed any reasonable expectation of privacy. City of Ontario v. Quon, ___ U.S. ___, 130 S.Ct. 2619, 2629 (2010). Quon asserted, on the other hand, that when the department allowed him to pay for the overages himself, that changed the policy, giving him a reasonable expectation in texts he had theoretically paid for himself. Id. The Court expressed reluctance in making a black-and-white ruling on privacy expectations, stating that “[a] broad holding concerning employees’ privacy expectations vis-à-vis employer-provided technological equipment might have implications for future cases that cannot be predicted.” Id. at 2630.
Instead, the Court chose to assume that Quon had a reasonable expectation of privacy and examined instead whether the city’s audit was reasonable. The Court found that the City had a “legitimate work-related rationale” for the audit, adding that “reviewing the transcripts was reasonable because it was an efficient and expedient way to determine whether Quon’s overages were the result of work-related messaging or personal use.” Id. at 2631. Because the audit only sampled a couple of months, and only reviewed those sent and received during Quon’s working hours, the search was not “excessively intrusive.” Id. Finally, the Court added that as a member of law enforcement, Quon should have had an ongoing expectation that at some point his communications may be subject to legal scrutiny – for example, under a state open records law request. Id. The Court rejected the Ninth Circuit’s finding of “less intrusive” means, calling that analysis improper “post hoc evaluation” by the court. Id. at 2632.
Regarding the other plaintiffs, they had tied their Fourth Amendment rights to Quon’s, and because the search was reasonable to Quon, it was reasonable to them as well. Id. at 2633.
For public employers, the implications of Quon are relatively clear: If you give your employees electronic methods of communication, you must clearly notify them up front about their lack of any expectation of privacy in using any and all such methods from their use. The best way to ensure adequate notice is by providing employees with a written notice, listing every possible means of communication that may be subject to monitoring, that the employees sign and acknowledge. If you determine that you need to monitor, audit, or search an employee’s communications, clearly articulate a legitimate business reason for doing so. As Quon suggests, the least restrictive means are not required, but the search should be subject to reasonable parameters.
While private employers are generally not bound by the Fourth Amendment, they can still learn important lessons from Quon. The most prudent private employers will conduct themselves as the public employers do – obtain written acknowledgement from employees that their electronic devices are subject to monitoring, and articulate a business reason for performing any such monitoring.
Of course, all employers should recognize that Quon does not delineate a clear test. Courts must still engage in a case-by-case analysis to determine whether the “operational realities” provide the employer with a reasonable expectation of privacy, and courts still have wide discretion in determining the reasonableness of any search. In the majority opinion, Justice Kennedy noted that these considerations are likely to change with the “[r]apid changes in the dynamics of communication and information transmission.” Quon, at 2629.
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