City of Ontario V. Quon: Electronic Privacy in the Workplace

This article originally appeared in the November 2010 Employment Law Committee Newsletter. On June 17, 2010, the United States Supreme Court issued a highly anticipated decision in City of Ontario, California, et al. v. Quon. (1) The case had the potential create broad new privacy rights for public sector employees when using employer provided electronic devices, such as cell phones and pagers. Instead, the court held that the City of Ontario's (City) search of two-way pager transcript was reasonable, and therefore the heightened privacy rights afforded government employees in some instances was not protected communication under these given facts. BACKGROUND In 2001, the City of Ontario Police Department (Department) issued members of the SWAT team two-way pagers in an effort assist the team mobilize and respond emergencies. The City had a contract with Arch Wireless Operating Company (ARCH), which was also a party the litigation, provide wireless services for the pagers. The City's Computer Usage Policy (policy) applied text messages sent via pagers and the Department specifically put employees on notice that they should have no expectation of privacy or confidentiality. The City's policy specified that the City reserved the right to monitor and log all network activity, including email and Internet use, with or without notice. Users should have no expectation of privacy when using these resources. Officer Jeff Quon signed a statement acknowledging that he had read and understood the policy. The policy did not apply specifically the monitoring of pagers issued by the City. Even though the written policy did not list pagers as a technological device covered by the policy, the City made clear its employees that it would treat text messages from pagers the same way it treated the City's emails. This understanding was communicated orally City employees, including police officers. The application of the policy text messages was also reiterated in a written summary of meetings at which officials articulated the City's position. Unlike an email message (sent on the City's own computer system), text messages were transmitted on the pagers through an independent carrier Arch Wireless (Arch). Arch electronically stored a copy of each text message sent. The City imposed a maximum text message usage on its employees. Quon and the other officers exceeded the monthly text message usage limit on numerous occasions. Quon's lieutenant, Stephen Duke, informed Quon and other officers that if they paid for the excess text messages, he would not audit the text message records determine whether the excess messages were work related or personal. Quon and the other officers took advantage of this opportunity and paid for the excess text messages. After several months, the Police Chief determined that an audit should be conducted determine whether the text message limit was too low, or whether the officers were using the pagers for personal usage too. The audit revealed that Quon was sending sexually explicit text messages his wife and his girlfriend while on duty. Quon was disciplined for his actions. Quon sued the City of Ontario alleging that it had violated his Fourth Amendment rights against unreasonable searches. The District Court granted summary judgment in favor of the City of Ontario, but the Ninth Circuit reversed and granted summary judgment in favor of Quon. The Ninth Circuit held that the search was not reasonable and that Quon had a reasonable expectation of privacy in his text messages. The appellate court also found that the search could have been conducted in less intrusive ways, while still exploring the reason why the character limit was exceeded. The court also found that Arch had violated The Stored Communications Act by turning over the transcript the City. The decision was appealed the U. …

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