WORKPLACE PRIVACY AND TEXT MESSAGES: QUON V. ARCH WIRELESS
By Jennifer Brown Shaw and Matthew J. Norfleet
The Daily Recorder
With motorcycle gangs, a love triangle, and text messages that were, "to say the least, sexually explicit in nature," in the words of the district court, Quon v. Arch Wireless, Inc. reads more like a cable television police drama than a typical United States Supreme Court decision. The case received significant press not only because of the salacious facts, but also because many expected the Court to determine the scope of workplace privacy in text messages and other electronic communications.
In the case of public employees, the expectation of privacy is enforced under the Fourth Amendment to the U.S. Constitution, which protects citizens from unreasonable searches and seizures by the government. The Court in Quon was faced with two issues: (1) whether police officers had a reasonable expectation of privacy in text messages they sent on work time using work-provided equipment, and (2) whether the police department's review of those messages was "reasonable" under the Fourth Amendment.
Because the justices were concerned that the use of electronic data in the workplace and society is still in flux, the Court essentially skirted the privacy issue. However, the Court did provide guidance regarding what constitutes a "reasonable" search of electronic data under the Fourth Amendment.
The case arose in the Ontario Police Department in San Bernardino County. The plaintiffs were two officers in the S.W.A.T. team, along with the wife and girlfriend of one of the officers, Sergeant Jeff Quon.
In 2001, the Department contracted for service from Arch Wireless to provide two-way pagers to the S.W.A.T. team. The City's contract with Arch Wireless provided for base usage of a set number of characters, plus overage charges for use beyond the base. Within a month or two of receiving his department-issued pager, Sergeant Quon began incurring overage charges.
The City's "Computer Usage, Internet and E-mail" policy stated that some personal use of City-owned computers was permitted, but employees should have no expectation of privacy in their communications. The policy also stated that the City "reserves the right to monitor and log all network activity including e-mail and Internet use, with or without notice."
The pagers at issue in the case were not specifically covered by the policy, but the officer responsible for the pager contract (Lieutenant Duke) sent a memorandum announcing that the police department would treat the pagers the same as e-mails, and stating that text messages sent by pager "would be eligible for auditing." In fact, the department did not audit the pager messages, which were not accessible through the City's computer systems. Instead, according to at least one witness, Lieutenant Duke told the officers that management would not audit their messages if they did not incur overage charges.
Lieutenant Duke subsequently became frustrated at having to collect the overage charges from the officers. In response, the Chief ordered a review of pager usage. That is where the story gets interesting. It turns out that many of Sergeant Quon's text messages were not work related. He sent 456 messages in one month, 399 of which were not work related. He also sent up to 80 messages in one day, and averaged 28 messages every day, only three of which were related to police business.
Quon's messages included texts to his wife (from whom he was separated) and another officer with whom he was romantically involved, April Florio. Florio was involved in a criminal investigation of police dispatchers who used their personal cell phones to text suspected drug-trafficking motorcycle gang members that police detectives were onto them. Quon also sent personal texts to another S.W.A.T. officer, Steve Trujillo.
After they learned the department had obtained their text messages from Arch Wireless, Quon, his wife, Florio, and Trujillo sued the department and the Chief for invasion of privacy and violation of the Fourth Amendment of the United States Constitution. (The Supreme Court did not review their claims against Arch Wireless for violating the Stored Communications Act .)
The Right to Privacy Issue
Because the Ontario Police Department is a public entity (i.e., a state actor), Quon and the other employees argued that the search of the their messages constituted a violation of the Fourth Amendment. The district court held that Quon had a reasonable expectation of privacy in the content of his text messages. According to the court, whether the department violated the employees' Fourth Amendment rights depended on the Chief's motivation for conducting the review of the messages. If the Chief was conducting a criminal investigation, a search warrant would have been required. However, if the Chief was merely exercising his responsibility as a manager, no search warrant was needed.
A jury trial concluded that the Chief's motivation was to determine whether officers were being required to pay for work-related messages, and if the department should adjust its pager character limit with Arch Wireless. Based on that, the district court found no violation of the Fourth Amendment.
The Ninth Circuit Court of Appeals reversed the decision, holding that there was a constitutional violation because, "[e]ven though the search was conducted for 'a legitimate work-related rationale,' . . . it 'was not reasonable in scope." The Ninth Circuit relied in part on the fact that Quon and the other officers were told that if they did not exceed their monthly text limits, the department would not review the content of their messages.
The U.S. Supreme Court Decision
Despite the media coverage surrounding the Quon decision, the Court did not break new ground. Rather than deciding whether Quon and the others had a reasonable expectation of privacy in their text messages, the Court assumed they did, and then ruled that the department and the Chief acted reasonably in reviewing those messages.
The Court explained that it "risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society had become clear." However, perhaps telegraphing its view, the Court also noted that the messages at issue were not sent on an employee's private cell phone, but rather on a police department-owned pager, through service a contract paid for by the police department, while on duty, after the officers received repeated warnings the messages could be audited by the department.
So, the Court based its decision on very narrow grounds: even if Quon and the others had a reasonable expectation of privacy in their text messages, the department did not violate their Fourth Amendment rights because the department's "search" was "justified at the inception" and "reasonably related to the objectives of the search and not excessively intrusive."
Because the jury found that the Chief reviewed Quon's text messages for the purpose of determining whether the pager plan was sufficient for the department's needs, the Court concluded "there were reasonable grounds for suspecting that the search was necessary for a non-investigatory work-related purpose." In addition, the review of Quon's text messages was not overly intrusive because the department limited the number of messages read and Quon knew the messages could be accessed (even if Lieutenant Duke had not previously audited the text messages).
What About California Law?
The Court's ruling in Quon is consistent with a recent decision by the California Supreme Court in Hernandez v. Hillsides, Inc. In that case, the employer operated a home and school for abused children. Based on information discovered by the computer administrator, the employer installed a hidden video camera in one office to determine who was using the computers to access pornography in violation of school policies. Although the two employees who normally occupied the office were not suspected of violating policy, their computer may have been used by the perpetrator after hours. When the employees discovered the camera, they sued for common law invasion of privacy and violation of California's state constitutional protection of privacy (which applies both to public and private sector employers).
The Court ruled that while the employees may have had a reasonable expectation of privacy in their office, the search conducted by the employer was not unlawful because "activation of the surveillance system was narrowly tailored in place, time, and scope, and was prompted by legitimate business concerns." Further, "defendants are not required to prove that there were no less intrusive means of accomplishing the legitimate objectives" of an otherwise reasonable search. So, Hillsides, like Quon, focused on the reasonableness of the "search."
Interestingly, Quon and Hillsides have something else in common. One of the cases the California Supreme Court reviewed in reaching its decision in Hillsides involved an earlier lawsuit filed by Steve Trujillo and Jeff Quon complaining that the Ontario Police Department had secretly placed a video recording device in the men's locker room of the station house. (That time, they won.)
Guidance for Employers
Both Quon and Hillsides acknowledge that employees may have a reasonable expectation of privacy at work. However, employers should not simply concede that point. Policies in this area should attempt to diminish employees' expectations of privacy by stating, among other things, that the employer may review electronic communications such as emails, voicemails and text messages for legitimate business purposes, there is no such thing as a "private" office, etc.
Further, employers should ensure that no one in management grants "exceptions" to electronic communication and similar policies by promising privacy in certain situations. New supervisors should be trained about the consequences of not following policy, and held accountable if they engage in any conduct that contradicts the policy.
Finally, employers should ensure they have a legitimate reason to monitor employees' actions at work. Without a sufficient business purpose for a "search," an employer could face substantial liability for such actions.