Electronic Discovery Law
Government Employer's Search of Employee's Text Messages on Employer-Issued Pager Did Not Violate Fourth Amendment
City of Ontario v. Quon, 130 S. Ct. 2619 (2010)
Yesterday, the U.S. Supreme Court issued its opinion in City of Ontario v. Quon, a case addressing whether a government employer’s search through an employee’s text messages, sent and received on a work-issued pager, violated the Fourth Amendment. Reversing the Ninth Circuit, the Supreme Court held that the search was reasonable and that the employee’s Fourth Amendment rights were not violated.
The facts of this case have been recounted previously, and do not require repeating in their entirety. Suffice it to say, Quon, a police officer for the City of Ontario, was allegedly disciplined following his employer’s discovery of many personal (and sometimes sexual) text messages sent from his work-issued pager. The nature and frequency of the text messages were discovered during an investigation to determine why Quon had repeatedly exceeded the monthly character limit (one other employee’s messages were also searched). During that investigation, the city reviewed transcripts of Quon’s messages for a period of two months. The city asserted the investigation was not motivated by a desire to uncover wrongdoing, but rather to determine the appropriateness of the character limit, i.e., was the character limit too low to accommodate work-related messages, or were the overages due to personal use. Alleging a violation of his Fourth Amendment rights, Quon (and those with whom he had been communicating) sued the city.
The District Court held that Quon had a reasonable expectation of privacy as to the content of the messages but that, in light of the motivation for the search, namely to determine the efficacy of the character limits, the search was reasonable and did not violate the Fourth Amendment. On appeal, the Ninth Circuit reversed in part and held that the search was not reasonable in scope and thus violated the Fourth Amendment. The city’s petition for certiorari was thereafter granted.
In its analysis, the Supreme Court relied substantially upon O'Connor v. Ortega, 480 U. S. 709 (1987), a case addressing the application of the Fourth Amendment when the Government acts in its capacity as an employer. In that case, a four-justice plurality concluded that the correct analysis had two steps: 1) determining the applicability of the Fourth Amendment based on “operational realties of the workplace” and 2) applying the standard of “reasonableness under all the circumstances” to the employer’s intrusion on that expectation “for noninvestigatory, work-related purposes, as well as for investigations of work-related misconduct.” Justice Scalia, concurring in the opinion, crafted a different approach which would dispense with the inquiry into “operational realities” and conclude that offices of government employees are covered by the Fourth Amendment and that “government searches to retrieve work-related material or to investigate violations of workplace rules – searches of the sort that are regarded as reasonable and normal in the private employer context – do not violate the Fourth Amendment.”
Establishing the boundaries of its holding in this case, the Supreme Court declined to issue a “broad holding concerning employees’ privacy expectations vis-à-vis employer provided technological equipment” and indicated it was “preferable to dispose of this case on narrower grounds.” Accordingly, for purposes of the analysis, it was assumed arguendo that “Quon had a reasonable expectation of privacy in the text messages sent on the pager”, that the city’s review of the messages “constituted a search within the meaning of the Fourth Amendment”, and that “the principles applicable to a government employer’s search of an employee’s physical office apply with at least the same force when an employer intrudes on the employee’s privacy in the electronic sphere.”
Under the approach of the O’Connor plurality, a government employer’s warrantless search is reasonable when 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.’” In the present case, the Court held that the search was justified because “there were ‘reasonable grounds for suspecting that the search was necessary for a noninvestigatory work-related purpose’”, namely to determine the sufficiency of the character limit on text messages. The Court further held that the scope of the search 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” and because the review was not “excessively intrusive.” Accordingly, the search did not violate Quon’s Fourth Amendment rights. In so holding, the Court noted that the search would also satisfy the approach of Justice Scalia where, because the employer had a legitimate reason for the search and because the search was not excessively intrusive in light of that justification, “the search would be ‘regarded as reasonable and normal in the private employer context’”.
The Court also held the rights of those with whom Quon was communicating were not violated.
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