Supreme Court takes on expectations of privacy for personal text messages

As noted in a post here about a week and a half ago, the Supreme Court will hear arguments on April 19 in City of Ontario v. Quon, which is an appeal by the city of a 9th Circuit Court decision in the case, which was then known as Quon v. Arch Wireless, and which went in Quon’s favor, finding the city had violated his 4th Amendment rights by examining the contents of personal text messages Quon had sent using a city-issued pager. There is a lot of attention focused on this case and the possible implications a ruling either way might have for employee expectations of privacy in the workplace, or outside the workplace when communicating with employer-owned devices. Public sector organizations in particular are concerned that if the 9th Circuit decision is affirmed, these organizations would be severely constrained in their ability to monitor electronic communications among law enforcement personal, between teachers and students, or among employees in general.

Given the Court’s past tendency to avoid establishing sweeping precedents extrapolating from the specific circumstances of a case before them, our expectation is for a ruling more narrowly focused to the atypical facts in this case. The Ontario police department (Quon’s employer) had an explicit policy in place that clearly gave employees no expectation of privacy when using city-issued computers or resources, although to be fair there was no specific policy that addressed text messaging uses of pagers. Nonetheless, the official policy is not a point of contention; what is relevant is that Quon’s immediate supervisor made a separate arrangement with Quon and some of his fellow officers that was in conflict with the city policy. It’s not at all clear that Quon would have prevailed in his appeal had the conflict between formal and informal policies not been involved. While other courts have found that even unambiguous employer policies may not be able to override employee expectations of privacy for some types of content (such as communications between an employee and an attorney), there doesn’t seem to be anything in the nature of the personal text messages in the Quon case that would demand special protection.

In advance of Monday’s argument, the plaintiff’s reply brief has yielded some observations by legal experts on the line of reasoning the city will use to plead its case. Orin Kerr noted his surprise at the attention focused on the Stored Communications Act (SCA) and Quon’s former (successful) argument that the provisions of the SCA create a reasonable expectation of privacy, which was violated by the city when it read his personal text messages. Presumably to challenge the reasonable expectation of privacy argument under the 4th Amendment, the city feels it needs to challenge the 9th Circuit’s interpretation of the SCA as well. This is an interesting tactic given that the Supreme Court granted cert. only on the 4th Amendment appeal by the city, but denied cert. on Arch Wireless’s appeal (Arch Wireless is not a party to the case before the Supreme Court) of the ruling that it violated the SCA. The primary challenge for the city in overturning Quon is convincing the Court that Quon’s expectation of privacy was not reasonable, and that appears to be a tall order given the facts of the case that aren’t in dispute. However, an affirmation of Quon could hardly be construed as an unequivocal victory for employee expectations of privacy. Instead, such a ruling would highlight the critical importance of writing explicit policies covering acceptable uses of employer-owned resources and, if personal use is to be allowed, of avoiding vague or subjective terms like “limited” or “occasional” and instead being clear on exactly what will be permitted and under what terms.