United States Supreme Court Hears Argument on Expectation of Privacy as to Text Messages on Work Pager

Quon v. Arch Wireless Operating Co., 529 F.3d 892 (9th Cir. 2008);  City of Ontario v. Quon (08-1332)

In the summer of 2008, the Ninth Circuit held that a city employee had a reasonable expectation of privacy as to personal text-messages sent from his city-issued and city-owned text-messaging pager (‘pager”).  The court further ruled that the employee’s Fourth Amendment rights were violated when his supervisor read those text messages, after requesting transcripts from the service provider.  The city has appealed the court’s findings to the United States Supreme Court and oral arguments were heard on Monday, April 19th. An opinion is expected in June, 2010. 

The relevant facts are as follows.  In late 2001 or early 2002, pagers were issued to city employees, including Sergeant Jeff Quon, a member of the police department.  There was no official policy regarding text-messaging on the pagers.  The City did have a general “Computer Usage Internet, and E-mail Policy”, however, which made clear that the use of city-owned “tools” was limited to business and that “use of these tools for personal benefit” was a “significant violation” of the City’s policy.  The policy also reserved the right of the City to monitor use and stated specifically that the email system was “not confidential”.  In 2000, Quon signed an acknowledgement of this policy.  In 2002, Quon attended a meeting at which Lieutenant Steve Duke informed the attendees that all pager messages were considered email and would fall under the City’s relevant policy.

An informal policy governing the use of the pagers developed.  Specifically, the practice was that if employees went over their allotted character limit each month, they were responsible for paying the overage.  Quon repeatedly accrued overages.  Although the details of the conversation differ, the parties agree that Quon and Duke spoke about the overages.  Duke claimed he told Quon that the he could pay the overages to prevent an audit, but also stated that the text messages were public records, subject to audit at any time.  Quon claimed Duke told him that if he didn’t want his messages read, he should pay the overage fee.  Regardless, Quon paid overage fees for exceeding the character limit “three or four times.”

In August 2002, Quon and another officer exceeded their limits.  Subsequently, an audit of the pagers was ordered to evaluate the possible need to increase the character limit.  Transcripts of the messages were obtained and read.  Thereafter, an internal affairs investigation was initiated to determine “if someone was wasting…City time not doing work when they should be.”  The investigation revealed that Quon had repeatedly exceeded his character limit and that many of the messages were personal an often sexual in nature.  Quon and those he was messaging with sued the City for violating their Fourth Amendment rights.

The District Court found that Quon had a reasonable expectation of privacy in his text messages.  The court further found that the reasonableness of the search turned on the purpose for which it was undertaken.  Because it was undertaken for purposes of determining a proper character limit, and not to uncover misconduct (as determined by a jury), defendants were absolved of liability.

On appeal, Quon and the other Appellants noted their agreement that their expectation of privacy was real, but argued the issue of the reasonableness of the search should not have gone to trial because “it was unreasonable as a matter of law.”  The Ninth Circuit agreed.

In reaching its decision, the court conducted a two-part analysis to determine a) if Quon had a reasonable expectation of privacy and b) if the search was reasonable.  The court determined that Quon (and those with whom he communicated) had a reasonable expectation of privacy.  Specifically as to Quon, the Ninth Circuit agreed with the district court that “the Department’s informal policy that the text messages would not be audited if he paid the overages rendered Quon’s expectation of privacy in those messages reasonable” and noted that the formal usage policies were not the “operational reality” at the department.

Regarding the reasonableness of the search, the court determined that although the purpose of the search was reasonable, its scope was not.  By way of example, the court noted several alternatives to actually reading Quon’s messages that could have accomplished the goal of determining the need to raise the character limit, including allowing Quon to count characters himself.  Accordingly, the court determined Appellants’ Fourth Amendment Rights had been violated.

The case was appealed to the Supreme Court of the United States, and oral argument was heard on Monday, April 19th.  An opinion is expected in June, 2010.

A copy of the Ninth Circuit’s opinion is available here.

A transcript of the arguments before the Supreme Court is available here.

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