Supreme Court Reverses Employees' Win in Texting Case (Quon)

The Supreme Court today released City of Ontario v. Quon, in which the Court (in a unanimous decision, with Scalia concurring) held that the government employer's search of employee text messages was reasonable under the Fourth Amendment.  This was the case in which the employer got a private company to release employees full text messages because of their overuse of the texting plan.  Several messages were inappropriate and resulted in employee discipline. The Ninth Circuit held that this violated the Fourth Amendment, as looking at the full text messages--as opposed to merely the recipients' addresses--was not necessary to address the aim of the search.

The first important aspect of Quon is that the Court did not address whether the employees had a reasonable expectation of privacy in their texts. The Court assumed that they did because its analysis of the reasonableness of the search settled the issue.  In making this assumption, the Court emphasized that the rapid changes in technology and the norms that result from such changes have a big impact on this issue; thus, it was avoiding making a conclusive determination.  That's understandable, but unfortunate, as these type of issues are only going to increase, and it's not like the Court can't get a handle on the basic question at this point.  Maybe it just wants more development in the lower courts.

Second, having assumed a privacy interest, the Court held that the search was reasonable.  It was instigated for a work-related matter and--this is the potentially controversial aspect--looking at the full messages was not "excessively intrusive."  The Court seemed swayed by the fact that the employer only looked at a sample of messages sent while the employee was on duty.  No doubt the sexual nature of the texts didn't help either.

Finally, the Court implicitly approved of the O'Connor v. Ortega analysis, as Scalia's concurrence--reiterating his concurrence in Ortega that would implement a different analysis--didn't get any other justices to sign on.

My main conclusion is that this case mainly turns on the facts.  It seems to give employers a fair amount of leeway for searches, but that's not a surprise.  I predict that the Court will have to weigh in again later on the more precise contours of the reasonable expectation of privacy, although it seems reluctant to do so anytime soon.  So the normal warning continues to apply:  don't send anything electronic on work equipment without assuming that your employer is also reading it.

-JH & rb