City of Ontario, CA v. Quon (08-1332)

Appealed from the U.S. Court of Appeals for the Ninth Circuit (June 18, 2008)

Oral argument: Apr.19, 2010

FOURTH AMENDMENT, STORED COMMUNICATIONS ACT, PRIVACY

Officer Jeff Quon, a City of Ontario, California SWAT team member, was given a pager by his Department for communication. Although Quon was told that the pager communications were not private, a supervisor allowed Quon to use the pager for personal use so long as Quon reimbursed the department for overage charges, which Quon did. After determining the current payment system was not efficient, the Department ordered a review of the content of the text messages, ostensibly for the purpose of determining how many of the text messages were for business purposes. The search revealed Quon had sent personal messages to friends, as well as sexually explicit texts to both his wife and mistress. Quon sued the City of Ontario for violating his Fourth Amendment rights against unreasonable searches. The District Court granted summary judgment in favor of the City of Ontario, but the Ninth Circuit reversed and granted summary judgment in favor of Quon. The Ninth Circuit found the search to be unreasonable in light of Quon’s legitimate expectation of privacy. The Supreme Court will address a government worker’s Fourth Amendment rights, while also potentially addressing the Constitutional protection afforded to newer forms of communication, such as text messages.

Questions presented

1. Whether a SWAT team member has a reasonable expectation of privacy in text messages transmitted on his SWAT pager, where the police department has an official no-privacy policy but a non-policymaking lieutenant announced an informal policy of allowing some personal use of the pagers.

2. Whether the Ninth Circuit contravened this Court's Fourth Amendment precedents and created a circuit conflict by analyzing whether the police department could have used "less intrusive methods" of reviewing text messages transmitted by a SWAT team member on his SWAT pager.

3. Whether individuals who send text messages to a SWAT team member's SWAT pager have a reasonable expectation that their messages will be free from review by the recipient's government employer.

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Issues

Did the City of Ontario, California violate the Fourth Amendment by conducting a search of their employees’ text messages sent and received on a pager supplied by the City, where there was in informal policy allowing some personal use of the pagers?

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Facts

The City of Ontario contracted with Arch Wireless to provide the City with alphanumeric two-way pagers and text messaging services. See Quon v. Arch Wireless Operating Co., Inc., 529 F.3d 892, 895 (9th Cir. 2008). The pagers were distributed to its employees, including Sergeants Quon and Trujillo (“Quon”) of the Ontario Police Department. See id. When a text message is sent from one Arch Wireless pager to another, a copy of the message is archived on the Arch Wireless server. See id. at 895-96. While the City had no official policy concerning text messages by use of the pagers, it did have a general “Computer Usage, Internet and E-mail Policy” (the “Policy”) that applied to all employees. See id. The policy indicated that these devices were limited to City of Ontario-related business. See id. During a meeting, Quon and other City employees were made aware that the pager messages were considered e-mails for purposes of the Policy and that they were subject to auditing. See id.

Despite the fact that there was no express, official policy governing the use of the pagers, there was an informal policy governing their use. See Quon, 529 F.3d at 897. Each pager was given a limit of 25,000 characters; if an officer went above this limit, overage charges were assessed. See id. Lieutenant Duke was put in charge of collecting fees for the overages on the pagers. See id. According to Quon, Duke had told him that if he paid for the overage fee, the text messages would not be audited to see if they were work-related or not. See id. If the employee wished to challenge the overage, he could audit the messages and make a determination. See id. Quon went over the monthly character limit numerous times and paid the City the appropriate fees. See id.

After Quon exceeded his limit again in August 2002, Lieutenant Duke grew frustrated with collecting overage fees, and requested transcripts of the messages to determine whether the messages were work-related or for personal purposes—as the Department would consider increasing the monthly limit if employees were exceeding the limit based upon work-related messaging alone. See Quon, 529 F.3d at 897–98. The City requested transcripts from Arch Wireless, including those of Jeff Quon. See id. at 898. The messages were audited by several members of the Department, and a memorandum detailed the findings from the audit, including the fact that Quon had exceeded his monthly character allotment by 15,158 characters, and that many of the text messages were personal in nature and sexually explicit. See id. These messages were directed to and received from, among others, Appellants Jerilyn Quon, Quon’s wife, April Florio, Quon’s mistress, and Sergeant Steve Trujillo. See id.

On May 6, 2003, Quon brought an action against the City of Ontario, the Ontario Police Department, Arch Wireless, Lloyd Scharf, the Chief of the Ontario Police Department, and Debbie Glenn (“the City”) in the District Court for the Central District of California alleging violations of the Stored Communications Act (“SCA”) and the Fourth Amendment. See Quon, 529 F.3d at 898. The District Court found that Arch Wireless did not violate the SCA, and the City, the Police Department, and supervisors in the department did not violate Quon’s Fourth Amendment rights. See id. at 898-99. Quon appealed the judgment. See id. The Court of Appeals for the Ninth Circuit found that the search violated the Quon’s Fourth Amendment rights because they had a reasonable expectation of privacy in the content of their messages, and the search was unreasonable in scope. See id. at 909, 911. The Ninth Circuit also determined that while the Chief of the Department was shielded by qualified immunity, the City and the Department itself are not shielded by statutory immunity. See id. The City petitioned for writ of certiorari, which was granted by the U.S. Supreme Court on December 14, 2009. See City of Ontario, California v. Quon, 130 S.Ct. 1011 (2009).

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Discussion

This case addresses whether the City of Ontario violated the Fourth Amendment when the City read an employee’s text messages sent from the employee’s work pager. The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” US Const. amend. IV. The Petitioners, the City of Ontario, argue that the Respondent, Quon, did not have a reasonable expectation of privacy in his text messages, and even if he did, that the search was reasonable. See Brief of Petitioners, City of Ontario, et al. at 28–30, 45–47. Quon believes that he did have a reasonable expectation of privacy for these text messages, and the search regarding his text messages was unreasonable in its scope. See Brief of Respondents, Jeffrey Quon, et al. at 20–22, 55.

The National League of Cities, among others, writing as amici in support of the City, stress the strong interest of police departments in monitoring their employees’ communications to ensure efficiency and effective operation. See Brief of Amici Curiae the National League of Cities, et al. (“National League”) in Support of Petitioners at 7–10. The National League of Cities points out that the SWAT team deals with high-stakes emergencies involving public safety, and not allowing review of an employee’s communications threatens to undermine policies that are important to the efficient management of the department. See id. The National League of Cities also points out that if SWAT teams are using their pagers for personal use, they may put the SWAT operations at risk, as the officers may be distracted. See id. at 20. In addition, the National League of Cities argues that this decision may undermine the efficient management of other government agencies. See id. at 10. They contend that all government agencies need to have a great deal of control over their employees’ on-the-job words and actions so that they may efficiently run the public services. See id. at 19. The National School Boards Association, among others, believes this to be especially true in the case of public schools. See Brief of Amici Curiae National School Boards Association, et al. (“School Board”) in Support of Petitioners at 2. They believe the school districts’ interest in keeping schools safe far outweighs the employee privacy interests in this context. See id. at 4–5.

Los Angeles Times Communications, et al., in support of the City, are concerned with the way a decision for Quon in this case would affect the free flow of information to the public. See Brief of Amici Curiae Los Angeles Times Communications, et al. (“LA Times”) in Support of Petitioners at 19. They argue that public records allow the public to oversee government operations, which, in turn, increases the obligation of government agencies to monitor their employees’ activities to make sure they are operating efficiently. See id. at 20. The Los Angeles Times also points out that pagers are able to reveal information about the flaws in government operations. See id. at 22. Moreover, they argue that this interest has even greater force in the case of the police, as they hold important positions of authority in our society. See id. at 26.

The American Civil Liberties Union (“ACLU”), among others, in support of Quon, notes the importance of this case in addressing the applicability of the Fourth Amendment to new mediums, such as text messages. See Brief of Amici Curiae American Civil Liberties Union, et al. (“ACLU”) in Support of Respondents at 2. The ACLU urges the Supreme Court to proceed cautiously and limit its decision to the specific facts at hand, as this case has extremely significant implications regarding Fourth Amendment protection of private conversations. See id. In addition, the ACLU is concerned with the implications this case will have on employer-provided communication systems. See id. at 23. They argue that allowing government access to the employee communications will undermine the incentives to use employer-provided communication systems, therefore reducing the business advantage that accrues from having an employee constantly use a mobile device, since an employee who uses a single mobile device will be more readily reached by the employer when they are away from work than one who only keeps the device for work related purposes. See id. at 23–24.

The New York Intellectual Property Law Association (“NYIPLA”), in support of Quon, focuses on the fact that communication methods are rapidly changing. See Brief of Amicus Curiae New York Intellectual Property Law Association in Support of Respondents at 18. Because of the complexity of technological developments, they contend that a broad rule would be inappropriate. See id. at 30. NYIPLA also points out that the line between personal and professional communications at the workplace is often blurred. See id. at 19. They argue that the scope of the electronic communication policies at the workplace is therefore also going to be blurred. See id. NYIPLA believes that finding in favor of Quon in this case will incentivize private businesses and governmental agencies to clarify their communication policies and educate their employees on appropriate usage of communication devices. See id. at 27.

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Analysis

The City of Ontario argues that the search of Quon’s text messages was constitutional because Quon did not have a reasonable expectation of privacy for his communications on a work-issued pager. See Brief of Petitioners, City of Ontario, et al. at 15–16. On the other hand, Quon counters that the search violated the Fourth Amendment because it was unnecessarily intrusive and his superior, Lieutenant Drake, had authorized personal communication on the pager. See Brief of Respondents, Jeff Quon, et al. at 20, 23. Both the City of Ontario and Quon agree that the case is governed by O’Connor v. Ortega, which established the standard for when non-investigative searches of government employees by their employers violate the Fourth Amendment. See Brief of Petitioners at 22 (citing O’Connor v. Ortega, 480 U.S. 709, 715 (1987)(plurality opinion)); Brief of Respondents at 25 (citing O’Connor, 480 U.S. at 715). In O’Connor, the Court indicated that the “operational realities of the workplace” and the need for efficiency lessen Fourth Amendment protection for government employees. See O’Connor, 480 U.S. at 717. However, the Court also cautioned that the search must still be reasonable within the context. See id. at 725–26. For these purposes, a reasonable search will be both “justified at its inception” and “reasonably related in scope to the circumstances which justified the interference in the first place.” Id. at 726.

Did Quon have a reasonable expectation of privacy concerning his text messages?

The City of Ontario claims that Quon did not have a reasonable expectation of privacy, because the pager was issued by the police department for use in SWAT activities, and not for personal use. See Brief of Petitioners at 30. The City also notes that Quon signed a no-privacy form in regards to his e-mail and computer use and that it was made clear to Quon and other officers that this policy applied to the pagers. See id. at 33. The City argues that Quon’s text messages could be disclosed under the California Public Records Act, eliminating any legitimate expectation of privacy. See id. at 37–38. Finally, the City notes that Lieutenant Duke’s statements, expressing that he would not audit the phones except for issues related to overage charges, did not create an expectation of privacy. See id. at 41–42. The City argues that Duke’s statements concerned accounting and did not relate to Quon’s privacy and that Duke furthermore did not have the authority to override Department policy. See id.

In response, Quon first notes that Lieutenant Duke established that the Department computer use policy would apply to the pagers. See Brief of Respondents at 33, 35. However, it was also Duke who told Quon that he would not audit the pager, so long as he agreed to pay the overage charges. See id. at 36. Quon claims that the City’s position is inconsistent: the City would allow Duke to lower expectations of privacy by unilaterally establishing the policy on pagers, yet it would not allow Duke the power to then increase expectations by only auditing for overage purposes. See id. Quon argues that, in both cases, Duke dictated a communications policy to officer Quon, demonstrating that the City is able to selectively decide when Duke is a policy-making official. See id. Quon also asserts that O’Connor requires a flexible assessment of the entire employment context, not just an evaluation of formal stated policies. See id. at 41. Finally, Quon argues that the California Public Records Act does not apply because the text messages are not “public records,” but were archived and maintained by the private wireless company. See id. at 43. Quon counters that, under the federal Stored Communications Act, the company could not divulge the content of the messages without Quon’s consent. See id. at 47.

Was the City of Ontario’s search of text messages unreasonable?

The City of Ontario argues that even if Quon had a legitimate expectation of privacy as to the content of his text messages, its search of the text messages was reasonable. See Brief of Petitioners at 45. The City argues that, under O’Connor, privacy interests at the workplace are much lower than those at the home because of the government’s interest in running an efficient workplace. See id. at 46. The City argues that the Ninth Circuit Court of Appeals applied a “less intrusive means” test, which finds a search unreasonable if the government could have used a less invasive procedure for searching a person or his belongings. See id. at 48. However, the City argues that Supreme Court case law and the majority of Circuit Court opinions do not apply a “less intrusive means” test for Fourth Amendment search cases, because it is fairly easy for a judge to determine a less invasive method after the fact. See id. at 49. Rather, the City asserts that, under O’Connor, a court must look only at the actual search to determine reasonability. See id. at 50.

The City further maintains that the review was reasonable because it was undertaken to determine if the communication plan’s character limit on text messages was too low, and thereby decreasing the efficiency of the Department. See Brief of Petitioners at 53. The search was reasonably related in its scope, because the Department, by reviewing the transcripts, could determine what percentage of the texts was being used for business reasons. See id. at 54–55. The City also argues that that search was reasonable even if it was for the purpose of investigating potential misconduct by Quon, because excessive personal pager use was never allowed, and the City has an interest in its employees working efficiently. See id. at 57–58.

However, Quon argues that, because he had a reasonable expectation of privacy in his pager communications, a search must be both justified at its inception and reasonable in its scope. See Brief of Respondents at 22. Quon argues that the search was not justified at its inception, because the Department could not access the text messages under the Stored Communications Act. See id. at 53. Quon also claims that the search was not necessary, because Quon fully paid the overage charges, and the City was not burdened by the personal text messages. See id. at 54.

In asserting that the search was unreasonable in its scope, Quon argues that his Fourth Amendment rights significantly outweigh the method of the search. See Brief of Respondents at 55. Quon claims that, if the purpose of the search was to find out if officers were personally paying for work-based communication the officer would have exercised his right to file a claim with the Department. See id. at 56. Quon argues that the search was unreasonable, because the officers were told that their messages would not be reviewed so long as they paid for overage fees, as Quon did. See id. at 59. Quon does not argue in favor of a “less intrusive means” test, but asserts that the Ninth Circuit merely found the search unreasonable in light of Quon’s reasonable expectations, as established by his superiors in the Department. See id. at 59–60.

Does the Fourth Amendment protection extend to the parties to whom Quon sent his text messages?

The City argues that additional respondents April Florio, Jerilyn Quon, and Sergeant Trujillo should not receive Fourth Amendment protection in regards to the messages exchanged with Quon, because they similarly had no reasonable expectation of privacy. See Brief of Petitioners at 60. The City argues there was no justified expectation of privacy because all three of the other parties knew that they were exchanging messages with a Department-issued pager, and there is no indication that any of them were aware of Lieutenant Duke’s arrangement with Quon. See id. at 62. The City asserts that it is objectively unreasonable for a person to assume that communication sent to a police officer’s work pager would be completely private. See id. at 63.

Quon counters that, because the search against him was an unreasonable violation of the Fourth Amendment, the entire search is unreasonable as to other parties involved. See Brief of Respondents at 60. Quon argues that text messages are the equivalent of both telephone calls and written letters, and that the content of those forms of communication are protected by the Fourth Amendment. See id. at 62–63. Quon argues that his legitimate expectation of privacy extends protection to the parties with whom he is communicating. See id. at 65.

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Conclusion

This case will address the scope of a government employee’s Fourth Amendment rights in regards to electronic communications. Here, the Court will determine whether Quon had a reasonable expectation of privacy in text messages sent over an employer-issued pager, whether the search was reasonable, and what Fourth Amendment protections, if any, extend to third parties who send text messages to a government-issued pager. The Supreme Court’s decision in this case may have implications for government agencies’ ability to promote efficiency by monitoring employee communications. It may also have ramifications for transparency in government organizations, as the availability of communications of government employees are at times sought by media and other government watchdog groups. This case may also signal how the Court is prepared to apply the Fourth Amendment to new mediums such as text messages, as well as how the Court prepares to address government regulation of employee communication on access devices that may be used both at work, as well as from the home.

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Authors

Prepared by: Michelle Lynn and Chris Maier

Edited by: Katie Worthington

Additional Sources

• Washington Post: Supreme Court Will Decide Whether Employees’ Text Messages are Private

• Law.com: 'Sexting,' Texting and EDD Before High Court

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Edited by: