Supreme Court rules search of police officer’s text messages legal, opts not to try to resolve reasonable expectation of privacy issue

The U.S. Supreme Court handed down a unanimous ruling in Ontario v. Quon, reversing the 9th Circuit Court of Appeals and finding that the City of Ontario (Calif.) Police Department (OPD) did not violate the 4th Amendment rights of one of its officers when it reviewed the contents of personal text messages he had sent using his city-issued pager. Despite anticipations before the case was argued that the Court would try to resolve the disputed issue of whether Quon had a reasonable expectation of privacy with respect to his text messages, the justices determined that they didn’t need to resolve that issue to reach a conclusion in the case, and based their decision on a determination that irrespective of the employee’s expectation of privacy, the review of his text messages constituted a legal search under the 4th Amendment, relying in particular on the precedents from the plurality and concurring opinions in the 1987 case O’Connor v. Ortega.While prevailing 4th Amendment doctrine maintains that warrantless searches are unreasonable, under O’Connor the Court recognized that the “special needs” of the workplace justify an exception for non-investigatory, work-related purposes or for investigations of work-related misconduct. Interestingly, while Quon was allegedly disciplined as a consequence of the OPD’s review of his text message transcripts, the city never suggested Quon’s actions rose to the level of misconduct, and justified its search on the grounds that it sought to determine whether the volume limits on the text messaging pager subscriptions were too low and might be causing overage fees for work-related communications.

The Court tried to put its own constraints on the scope of its ruling in this case, apparently believing that the rapidly pace of technological change makes it unwise to establish precedents based on a single type of device or communications medium. Instead, Kennedy writes, “It is preferable to dispose of this case on narrower grounds.” To limit its legal analysis to the reasonableness of the search that occurred when the OPD reviewed Quon’s text message transcripts, the Court accepted three propositions for the sake of argument: 1) Quon had a reasonable expectation of privacy with respect to the text messages he sent; 2) his supervisors’ review of the message contents constituted a search under the Fourth Amendment; and 3) the principles ordinarily applied (from O’Connor) to a government agency’s search of its employees’ physical office also apply when the employer searches in an electronic environment.

Because the reasonableness principle stems from the O’Connor precedent, which says the reasonable expectation of privacy must be addressed on a case-by-case basis, the finding by the lower courts that Quon did have such an expectation (taken as an assumption by the Supreme Court for this case) cannot practically be considered to establish a general principle about text messages and privacy in government agency environments, much less workplace environments generally. In O’Connor, Justice Scalia offered a somewhat simpler standard for determining reasonableness in government-as-employer contexts, under which government workplaces would be covered by the 4th Amendment as a rule, but searches involving work-related materials or to investigate violations of workplace rules would be considered reasonable (as they are in private employer settings) and would therefore not violate the 4th Amendment. Either perspective would yield the same net conclusion in Ontario v. Quon, but in a separate concurring opinion, Scalia took the majority to task for including what is essentially a side discussion on the reasonable expectation of privacy question, since the Court notes repeatedly that resolving that issue was not necessary to decide the case before the Court. Scalia maintains his disagreement with the reasonableness approach the plurality proposed in O’Connor, saying “the proper threshold inquiry should be 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.”

Although it wasn’t unexpected, the narrow ruling by the Court limited to the particular facts of the situation and the reasonableness of the specific search involved mean we can only speculate about what conclusions might have been drawn had the Court followed through with some of the reasoning it described. The OPD had a computer usage, internet and email policy in place, which explicitly stated that users should have no expectation of privacy or confidentiality when using the city’s computers. OPD personnel had repeatedly expressed their position that text messages were to be treated the same as emails. In arguing the original case, there was some debate as to whether Quon’s supervisor’s statements that he did not intend to audit the text messages somehow overruled the official policy. The Court notes this disagreement without making any determinations regarding this matter. Justice Kennedy’s majority opinion also makes some important distinctions between text messages and emails, but doesn’t say whether these differences would prevent the city from applying its formal written computer policy to text messages, which are not explicitly mentioned in the policy. The key difference is the fact that while OPD emails are communicated using government servers, the text messages are not, passing instead through the communications infrastructure of the service provider (Arch Wireless). It might be interesting to see how the court would apply this line of reasoning had the city owned and operated the text messaging infrastructure, or if the communications at issue involved outsourced email services hosted by a third party.

Before hearing the case in April, the court denied cert to Arch Wireless’s appeal of the 9th Circuit’s ruling that it had violated the Stored Communications Act by turning over the contents of the text messages to the city when asked to do so. Given that the city was the subscriber of record for all the wireless pager accounts, it might have been interesting to see how the Court viewed that argument, but the issue was not taken up by the court, and was noted only in the context that legal precedent does not make the city’s search unreasonable even if the transcripts should not have been provided to them.

Without diminishing the importance or potential future significance of any of the above issues, the big unanswered question remains what reasonable expectations of privacy should public or private sector employers have in their personal communications, particularly when using employer-provided means of communication. The majority opinion made mention of the disagreement over privacy expectations and then devoted nearly as much space to justifying why the Court opted not to address this issue in its ruling: “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.” Justice Scalia voiced concerns in his concurring opinion that future litigants would try to use Quon’s case to justify claims of reasonable expectations of privacy, despite the explicit warning in the majority opinion: “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.”

Even assuming a reasonable expectation of privacy existed, which the court did for the sake of argument, the Court noted that given what Quon and his fellow officers had been told about the city’s perspective that text messages were considered the same as email, Quon couldn’t claim immunity from auditing in all circumstances. This seems to suggest that even where a legal expectation of privacy is established, such an expectation is not without limits. Justice Stevens, writing in a concurring opinion, said that Quon “should have understood that all of his work-related actions — including all of his communications on his official pager — were likely to be subject to public and legal scrutiny. He therefore had only a limited expectation of privacy in relation to this particular audit of his pager messages.”