SCOTUS Decides Public Sector Electronic Privacy Case

One of the major cases of the current Supreme Court term came out today.  The case is City of Ontario v. Quom.  The case involved the expectation of privacy in the use of a police department issued pager to one of it's officers.  Jeff Quon used his pager to send personal messages to his wife and to another woman with whom he had some involvement.  Some of these messages were sexually explicit.  Quon had notice of the Department's computer policy which explicitly stated the Department reserved the right to monitor and log all activity on the networks.  The policy was issued before the Department distributed pagers, but by implication, the policy extended to these devices.  One difference the Court noted on the pager system is that the messages went through a third party server rather than on a city owned system.  The pagers were contracted from Arch Wireless as a vendor who retained the transactional information on their servers.

The Department's contract with Arch Wireless called for character limits and any overages would incur additional charges.  The Department officer in charge of the contract told Quon about his overages and said the policy applied to text messages as well.  He also told Quon that if he paid the overage charges, he would not audit the use of the pager.  Other employees were treated similarly.  Quon exceeded his limits several times and each time he reimbursed the city with a check.  The chief of department became aware of the overages by multiple employees and ordered an audit to see if the messages were related to work.  One thing he wanted to determine was whether the limits should be raised and the contract revised.  Arch Wireless provided the city with transcripts and the Department discovered the private nature of Quon's messages.  His case was referred to Internal Review to determine if the private messages were sent while Quon was on duty.

Two months were selected for an audit.  The schedule of messages were aligned with the times Quon was on duty.  The results of the examination showed that he vast majority of messages sent or received were not work related.  Quon was disciplined for the conduct.  He then sued, along with other members of the Department, his then-wife and another woman with whom he exchanged messages.  The District Court held that the audit had a reasonable purpose and did not violate Quon's Fourth Amendment rights.  The Ninth Circuit reversed in part because it felt there may have been more less-intrusive means for the Department to conduct its investigation.  Both cases noted that Quon had a reasonable expectation of privacy.

The Court addressed the circumstances by looking at the test announced in O'Connor v. v. Ortega, 480 U. S. 709 (1987).  That case was not completely dispositive because it was a plurality opinion and because the test was subjective:  the expectation of privacy and the reasonableness depended a lot on the circumstances surrounding the search.  The Court was sympathetic to the idea of searches for workplace misconduct being reasonable.  Subsequent precedent suggested that circumstances of how a department operated had an impact on how reasonableness should be perceived. 

The analysis that followed noted that Quon had an expectation of privacy; that the audit was limited to his on-duty conduct and only relied on a sample of months rather than his entire history using the pager; and his understanding of the computer policy in effect.  Under these circumstances, and applying precedent, his Fourth Amendment rights were not violated.  The remaining petitioners on Quon's side of the dispute had more or less argued an all or nothing position, that if Quon's rights were violated, so were theirs.  The Court noted that there was a middle ground, that their rights were potentially violated even if Quon's rights weren't.  Since they hadn't made that argument, it was waived.  Oh, well.

The case would be simple enough if it stopped there.  The one dispute that came up between the Justices dealt with the extent the ruling would apply to other situations.  The Court noted in Part III-A of the opinion that expectations of privacy and reasonableness of searches should not be assumed with changes in technology.  Justice Scalia did not agree and suggested in his own concurrence that investigations of misconduct should be reasonable.  In some respects he is right.  The facts took place around 2002.  Even then it was late in the game for devices such as pagers.  Not even drug dealers use them now.  Business and the public sector rely on smart phones and other Internet connected devices.  Would the circumstances of those devices today result in a different ruling?

The case was decided 9-0.  The opinion is here.  [MG]