PUBLIC EMPLOYER'S SEARCH OF TEXT MESSAGES DID NOT VIOLATE FOURTH AMENDMENT
In a closely-watched case, the United States Supreme Court has ruled that a California city did not violate the Fourth Amendment to the United States Constitution when it searched text messages sent to and from an employee's alphanumeric pager issued by the City's Police Department. The High Court's decision in City of Ontario v. Quon overturns a controversial decision two years ago by the Ninth Circuit U.S. Court of Appeals. The Ninth Circuit had ruled that the search was unlawful because it was overly intrusive and the City did not consistently follow a policy that clearly authorized such searches.
However, a unanimous Supreme Court opted for a more employer-friendly approach. It ruled that the search of text messages was reasonable because it "was motivated by a legitimate work-related purpose, and ... was not excessive in scope."
The plaintiffs in the Quon case also claimed that the search of text messages violated their right to privacy under the California Constitution. The Supreme Court did not review that claim. Instead, it sent the case back to the Ninth Circuit, which may revisit the privacy claim at a later time.
The City of Ontario issued pagers to police department employees who were members of the "SWAT" team, to enable them to promptly respond to emergencies. Employees had to pay "overage" charges if they exceeded 25,000 characters per month on their pagers.
Sergeant Jeffrey Quon frequently exceeded the 25,000-character limit.Eventually, the officer in charge of the City's contract with the wireless company became "tired of being a bill collector." He persuaded the Police Chief to order a search of text messages to determine whether the 25,000-character limit was too low for work-related purposes.
The City did not obtain a search warrant and did not notify Quon before having the wireless company provide transcripts of the text messages Quon sent and received. Many of these messages were not only personal but sexually explicit.
Quon, along with several others with whom he "texted," sued in federal court for violation of their Fourth Amendment rights, invasion of privacy and other claims. A district court judge found that Quon had a reasonable expectation of privacy in his text messages, and held a jury trial to determine the City's purpose in searching the messages.
The jury found the City's motive was simply to determine whether the 25,000-character limit was too low. In light of this purpose, the judge ruled that the search was reasonable, and entered judgment in favor of the City.
The Ninth Circuit disagreed, reasoning that there were less intrusive ways for the City to determine the adequacy of the character limit. However, the Supreme Court rejected the idea that only the "least intrusive" search possible can be reasonable under the Fourth Amendment.
The High Court found that the City had a "legitimate interest" in ensuring employees were not paying for work-related expenses out of their own pockets, or conversely that the City was not paying for employees' "extensive personal communications." The search of transcripts "was an efficient and expedient way" of satisfying this purpose, and it was not overly intrusive because the City only reviewed a limited sample of Quon's messages.
The Supreme Court assumed, without deciding, that Quon had a reasonable expectation of privacy in his text messages. However, the Court found that this expectation was limited, because Quon had been told his messages might be subject to auditing, and because the actions of law enforcement officers are frequently subjected to public scrutiny. This further supported the Court's conclusion that the search was reasonable in scope.
Technically, the Supreme Court's decision in Quon only affects public employers, because private companies do not have to comply with the Fourth Amendment. By comparison, California's constitutional right to privacy applies to private and public sector employees alike. It remains to be seen whether California courts, or the Ninth Circuit, will follow the Supreme Court's reasoning in Quon when addressing claims under California state law.
Even after the Quon decision, it would be prudent for California employers to implement and consistently enforce clear written policies allowing searches of employer-issued computers, cell phones, Blackberries and other devices. This remains the best way for employers to limit their employees' expectation of privacy in such devices.
We would be pleased to assist to your company in drafting policies on employee usage of computers, cell phones, Blackberries and the like.
For more information, call us today at (818) 508-3700, or visit us on the web, at www.brgslaw.com.
Sincerely,
Richard S. Rosenberg
Partner
BRG&S, LLP
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