This spring, the United States Supreme Court will hear the case of City of Ontario v. Quon, which questions whether the Fourth Amendment protects the privacy of text messages that a government employee sends by electronic device.

In 2001, the city of Ontario, California distributed pagers to a number of the employees in its police department. Jeff Quon, a member of the departments SWAT team, received one of the pagers. The city had no official policy governing use of the pagers, however, the city did have a general Computer Usage, Internet, and Email Policy that limited the use of city-owned equipment to city business. The policy also provided that the city maintained the right to monitor and log network activity with or without notice and that there was no expectation of privacy when using city email or the Internet. Quon attended a meeting during which the police department informed those present that pager messages would fall under the citys policy as eligible for auditing. The city also set up an informal policy governing the use of the pagers. Each pager was allotted 25,000 characters, after which the individual was required to pay overage charges. So long as employees agreed to pay for any overages, the police department made it clear that they would not audit the pagers. In August 2002, Quon exceeded the 25,000 character limit by over 15,150 characters. The chief of police requested the transcript of the pager for auditing purposes. The company responsible for contracting out the pagers voluntarily disclosed the transcripts to the city without notifying Quon. The transcripts showed that a number of Quons messages were personal in nature and many of them were sexually explicit.

In response to the search, Quon filed suit against the police department, claiming that the search violated his rights under the Fourth Amendment. The district court held that, in light of the informal policy that the pager would not be audited so long as the user paid the overage charges, Quon had a reasonable expectation of privacy in his text messages. The court held that the police departments liability hinged on whether the citys intent was to uncover misconduct or to discover the usefulness of the usage limit. If it was the former, the search was unreasonable; if it was the latter, the search was reasonable. A jury found that the police chiefs intent was to determine the usefulness of the character limit. Therefore, the search was reasonable and the city was absolved of liability for the search.

The Court of Appeals for the Ninth Circuit reversed, holding that the city employees had a reasonable expectation of privacy for the text messages they sent because there was no formal text message privacy policy in place. The court also noted that the police departments review of the text messages was unreasonable in its scope because the department could have used less intrusive methods to determine whether employees had properly used the text messaging service.

The United States Supreme Court has been asked to review two questions: 1) whether a SWAT team member has a reasonable expectation of privacy in text messages transmitted on his SWAT pager, where the police department has an official no-privacy policy, but a non-policymaking lieutenant announced an informal policy of allowing some personal use of the pagers; and 2) whether individuals who send text messages to a SWAT team members SWAT pager have a reasonable expectation that their messages will be free from review by the recipients government employer.

The National School Boards Association has filed an amicus brief (also known as a "friend of the court" brief) in the case, citing concerns with the Ninth Circuits holding that an unauthorized informal policy can create an expectation of privacy in workplace electronic communications, despite an official policy to the contrary and the public nature of the communication under public records laws. This ruling, they claim, eviscerates a school districts ability not only to efficiently and effectively manage the workplace, but also to ensure the health, welfare and safety of its students.

The United States Supreme Court is expected to hear arguments in the case in the spring and issue a decision by the end of June 2010.

Posted by OSBA Legal Ledger on 2/26/2010