You may remember from mid-April when I reviewed the facts of City of Ontario (CA) v. Quon, involving a SWAT team member who was using his government-issued pager to send an excessive number of texts to his wife and his, um, girlfriend, leading to his bosses reviewing the contents of his messages to figure out how many were personal, leading to Officer Quon, his now ex-wife and his girlfriend (also a colleague) suing the City and his wireless provider for invasion of privacy. It was a fascinating oral argument, with the Chief Justice learning that messages don't just magically flow from one device directly to another, and we had a great discussion here as to what expectations of privacy were reasonable for a device provided by your employer (and, in this case, subject to public records requests).
In a more or less unanimous opinion today, the Court punted on the big issues of what constitutes a reasonable expectation of privacy or what constitutes a proper search of a public employee's workplace, instead deciding on the narrower ground that even if the officer had a reasonable expectation of privacy in his text messages, the Department's warrantless search of them was nonetheless reasonable under these circumstances. Justice Kennedy, for all nine Justices:
Even if Quon had a reasonable expectation of privacy inhis text messages, petitioners did not necessarily violate the Fourth Amendment by obtaining and reviewing the transcripts. Although as a general matter, warrantless searches “are per se unreasonable under the Fourth Amendment,” there are “a few specifically established and well-delineated exceptions” to that general rule....
[W]hen conducted for a “noninvestigatory, work-related purpos[e]”or for the “investigatio[n] of work-related misconduct,” a government employer’s warrantless search is reasonable if it is “‘justified at its inception’” and if “‘the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of’” the circumstances giving rise to the search....
As a jury found, Chief Scharf ordered the search in order to determine whether the character limit on the City’s contract with Arch Wireless was sufficient to meet the City’s needs. This was, as the Ninth Circuit noted, a “legitimate work-related rationale.” The City and OPD had a legitimate interest in ensuring that employees were not being forced to payout of their own pockets for work-related expenses, or on the other hand that the City was not paying for extensive personal communications.
As for the scope of the search, 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. The review was also not “‘excessively intrusive.’” Quon had gone over his monthly allotment a number of times, OPD requested transcripts for only the months of August and September 2002. While it may have been reasonable as well for OPD to review transcripts of all the months in which Quon exceeded his allowance, it was certainly reasonable for OPD to review messages for just two months in order to obtain a large enough sample to decide whether the character limits were efficacious. And it is worth noting that during his internal affairs investigation, McMahon redacted all messages Quon sent while off duty, a measure which reduced the intrusiveness of any further review of the transcripts.
As for Quon's expectations of privacy:
Even if [Quon] could assume some level of privacy would inhere in his messages, it would not have been reasonable for Quon to conclude that his messages were in all circumstances immune from scrutiny. Quon was told that his messages were subject to auditing. As a law enforcement officer, he would or should have known that his actions were likely to come under legal scrutiny, and that this might entail an analysis of his on-the-job communications. Under the circumstances, a reasonable employee would be aware that sound management principles might require the audit of messages to determine whether the pager was being appropriately used. ...
OPD’s audit of messages on Quon’s employer-provided pager was not nearly as intrusive as a search of his personal e-mail account or pager, or a wiretap on his home phone line, would have been. That the search did reveal intimate details of Quon’s life does not make it unreasonable, for under the circumstances a reasonable employer would not expect that such a review would intrude on such matters. The search was permissible in its scope.
And as for the privacy of those who sent Quon messages:
Petitioners and respondents disagree whether a sender of a text message can have a reasonable expectation of privacy in a message he knowingly sends to someone’s employer-provided pager. It is not necessary tor esolve this question in order to dispose of the case, however. Respondents argue that because “the search was unreasonable as to Sergeant Quon, it was also unreasonable as to his correspondents.” They make no corollary argument that the search, if reasonable as to Quon, could nonetheless be unreasonable as to Quon’s correspondents. In light of this litigating position and the Court’s conclusion that the search was reasonable as to Jeff Quon, it necessarily follows that these other respondents cannot prevail.
As for why the Court declined to go more broadly, all-but-Scalia signed onto this section to explain:
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.... 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.
Rapid changes in the dynamics of communication and information transmission are evident not just in the technology itself but in what society accepts as proper behavior. As one amici brief notes, many employers expect or at least tolerate personal use of such equipment by employees because it often increases worker efficiency. See Brief for Electronic Frontier Foundation et al. 16–20. Another amicus points out that the law is beginning to respond to these developments, as some States have recently passed statutes requiring employers to notify employees when monitoring their electronic communications. At present, it is uncertain how workplace norms, and the law’s treatment of them, will evolve.
Even if the Court were certain that [this] approach were the right one, the Court would have difficulty predicting how employees’ privacy expectations will be shaped by those changes or the degree to which society will be prepared to recognize those expectations as reasonable. 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, even self identification. That might strengthen the case for an expectation of privacy. On the other hand, the ubiquity of those 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 their own. And employer policies concerning communications will of course shape the reasonable expectations of their employees, especially to the extent that such policies are clearly communicated.
A broad holding concerning employees’ privacy expectations vis-à-vis employer-provided technological equipment might have implications for future cases that cannot be predicted.
Justice Stevens concurred to stress that he didn't care what test the Court employed:
Jeff Quon, as a law enforcement officer who served on a SWAT Team, 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.
And Justice Scalia wrote separately to distinguish himself from the whole evolving-workplace-expectations thing:
I continue to believe that the “operational realities” rubric for determining the Fourth Amendment’s application to public employees is standardless and unsupported. In this case, 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 onemployer-issued pagers.
Here, however, there is no need to answer that threshold question. Even accepting at face value Quon’s and his co-plaintiffs’ claims that the Fourth Amendment applies to their messages, the city’s search was reasonable, and thus did not violate the Amendment.
Fans of Nino's rhetorical flourishes will enjoy this:
Applying the Fourth Amendment to new technologies may sometimes be difficult, but when it is necessary to decide a case we have no choice. The Court’s implication that where electronic privacy is concerned we should decide less than we otherwise would (that is, less than the principle of law necessary to resolve the case and guide private action)—or that we should hedge our bets by concocting case-specific standards or issuing opaque opinions—is in my view indefensible. The-times-they-are-a-changin’ is a feeble excuse for disregard of duty.
...Any rule that requires evaluating whether a given gadget is a “necessary instrumen[t] for self-expression, even self-identification,” on top of assessing the degree to which “the law’s treatment of [workplace norms has] evolve[d]” is (to put it mildly) unlikely to yield objective answers.
Still remaining this month, among other cases: does the Second Amendment apply against state and local gun laws? What's the scope of the "theft of honest services" criminal statute? What types of processes can be patented? Can a public university deny funding to a religious student group based on its discriminatory membership practices? And do people who sign a petition to have a referendum placed on the ballot have any right of privacy in their names? A fun month awaits.