Did My Boss Just Read That? Applying a Coding vs. Content Distinction in Determining Government Employees’ Reasonable Expectation of Privacy in Employer- Provided Electronic Communication Devices After City of Ontario v. Quon, 130 S. Ct. 2619 (2010)

With the rapidly increasing prevalence of cell phones, e-mail, and other forms of electronic communication, courts are forced to answer the question of whether individuals have a reasonable expectation of privacy in electronic communication devices. Courts increasingly face situations where public employers search their employees’ work-provided communication devices, and the employees claim a violation of an expectation of privacy. Historically, the Court has distinguished information available to third parties from information intended only for the recipient’s eyes, which the sender attempted to keep secret from others. In 1877, the Supreme Court applied the Fourth Amendment to sealed letters sent via the United States Postal Service. In Ex parte Jackson, the Supreme Court determined an individual who mails a letter has a reasonable expectation of privacy in the content of the sealed letter; on the other hand, the individual has no reasonable expectation of privacy in the addressing information on the outside of the envelope. In 1979, the Court applied a similar distinction in determining an individual does have a reasonable expectation of privacy in the content of telephone calls, but not the number he or she has dialed. With technology advancing, the question has arisen of whether a similar distinction should apply to determine the reasonableness of a privacy interest attached to electronic communications. The United States Supreme Court faced this question in City of Ontario v. Quon, in which the Court held the Fourth Amendment does not protect an employee’s text messages from a public employer’s search. Quon, a police officer in the City of Ontario, claimed his supervisors violated his reasonable expectation of privacy when they searched the content of his text messages sent on his employer-provided text messaging pager. The Court declined to determine whether Quon, and by extension other public employees, would have a reasonable expectation of privacy in such devices. Instead, the Court determined that, regardless of Quon’s expectation of privacy, the City of Ontario was reasonable in searching the pager. This Note begins by exploring the relevant history of the Fourth Amendment search and seizure provision as applied to communications and government employers. Part III discusses the Court’s opportunity in Quon to apply a set standard to text messages, and argues the Court should make more definitive statements determining government employees’ privacy interests in the future. Part IV gives recommendations for lower courts in handling the nebulous area left by the decision in Quon. The Court should follow the standard first espoused in Ex parte Jackson: individuals have a reasonable expectation of privacy in the content of their text messages, but not the addressing information.

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