,
Bronwyn F. Pollock 
and
Jerome M. Jauffret
Originally published December 16, 2009
Keywords: employer access, text messages, privacy rights
On December 14, 2009, the United States Supreme Court agreed to review a decision of the United States Court of Appeals for the Ninth Circuit holding that, by reviewing text messages transmitted and received on a pager issued to a police officer, a California city had violated the constitutional privacy rights of the officer and of three individuals who had sent him text messages. City of Ontario v. Quon, No. 08-1332. Though the issue presented involves the Fourth Amendment to the US Constitution, this case may be of interest to companies that provide cell phones, pagers or similar devices to their employees.
The Ontario Police Department (OPD) issued pagers to its SWAT team members. The police officers were told that they would be responsible for charges in excess of 25,000 characters per month. The City of Ontario had a formal policy giving it the right to monitor "network activity including email and Internet use." The policy warned employees that they "should have no expectation of privacy" in such communications. The policy did not address text messages, but the OPD lieutenant in charge of administering the pagers adopted an informal policy providing that the text messages of police officers who voluntarily paid the excess charges would not be reviewed. OPD Sergeant Jeff Quon exceeded the character limit several times, and, on each occasion, he repaid the city for the overage charges.
After the lieutenant complained about acting as a bill collector for police officers who exceeded the character limit, the police chief directed him to order transcripts for the pagers issued to certain officers (including Quon) who had repeatedly exceeded the character limit. The police chief instructed the lieutenant "to determine if the messages were exclusively work related, thereby requiring an increase in the number of characters officers were permitted, . . . or if they were using the pagers for personal matters." The investigation disclosed that Quon had sent and received hundreds of personal messages, many of them sexually explicit.
Quon and three individuals with whom he had exchanged text messages sued the city, the OPD and others, alleging a violation of their privacy rights under the Fourth Amendment and the California Constitution. Reversing a defense judgment, the Ninth Circuit held that the plaintiffs' rights to privacy under the federal and state constitutions had been violated because the search was not reasonable in scope. 529 F.3d 892. The Ninth Circuit found that the OPD could have verified the adequacy of the character limit without intruding on the plaintiffs' privacy rights—for example, by warning Quon that for a particular month he was forbidden from using his pager for personal communications and that the contents of all his messages for that month would be reviewed to ensure compliance. The Ninth Circuit also held that the city's formal policy concerning its right to monitor electronic communications had been overridden by the "operational reality" of the OPD lieutenant's informal policy regarding the use of pagers by police officers. The United States Supreme Court granted the defendants' petition for a writ of certiorari. The petition asked the Court to decide the scope of the various plaintiffs' reasonable expectations of privacy in the text messages, including the effect of the seemingly contradictory formal and informal policies. The petition also asked the Court to resolve a conflict among the circuit courts of appeals on whether a "less intrusive means" analysis was appropriate.
Although the facts in this case involve only the use of text messaging over pagers in the workplace, the Supreme Court's decision is likely to address the scope of privacy of electronic communications, and also may affect privacy rights in other existing and future forms of electronic communications. Moreover, although this case involves government actions, the decision may influence the theories asserted in employee litigation against private employers in California and elsewhere.
We will monitor the progress of this case and plan to issue a further Case Alert when the Supreme Court issues its decision.
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