Supreme Court Reviews City's Right to Examine Police Sergeant's Private Text Messages

By Norman A. Dupont

Modern technology has created a number of dilemmas in the working world. On one hand, pagers, Blackberry-type devices, text messaging services and remote computing have made it possible to work from virtually anywhere and still be "on the job." On the other hand, many employees, including municipal employees, assume that private messages on e-mail servers and elsewhere will remain private. The United States Supreme Court heard argument on April 19, 2010 on a case raising one specific claim of privacy by a police sergeant, City of Ontario v. Quon, No. 08-1332. The Supreme Court's decision, which is expected before the Court recesses at the end of June, will provide municipalities with significant guidance on the interplay of modern technology and privacy rights.

Background

The facts in Quon are relatively simple. The City of Ontario (City) employed Jeff Quon, who served on the police department's SWAT team. The City provided various means of electronic communication to its employees, including e-mail, city computers, and text messaging. The City's written policy advised all employees that there would be no privacy as to "City-owned computer equipment, computer peripheral, city networks, the Internet, e-mail, or other city-related computer services." But, in a briefing to members of the SWAT team, a police lieutenant orally stated that the City did not intend to "audit" text messages over a certain number of characters. Police Sergeant Quon claimed that this oral instruction from the lieutenant constituted a separate City policy with respect to text message pagers, and that he had a reasonable expectation in the privacy of his text messages (including sexually explicit messages sent to his wife, mistress, and a fellow SWAT team member).

The City later decided to audit Quon's text messages, and obtained copies of them from the service provider. Sergeant Quon sued the City pursuant to the federal civil rights provisions (42 U.S.C. Section 1983), alleging that the City, acting under color of state law, violated his federal constitutional rights against unreasonable searches under the Fourth Amendment. Sergeant Quon lost before the federal District Court, which ruled on cross-motions for summary judgment that the Sergeant (and other co-plaintiffs) had a "reasonable expectation" of privacy given the "operational realities" of the policy of the department at that time. But, the District Court ruled that a jury must determine whether the "primary purpose" of the City's review of the text message records was reasonable under the circumstances.

The Courts' Rulings

Based upon a jury factual determination that the City's police chief intended only to audit Sergeant Quon's high-level of use of the text messaging, the District Court then entered judgment for the defendants. On appeal, the Ninth Circuit reversed finding that the City's action constituted an unreasonable search under the Fourth Amendment. After a denial of a rehearing en banc over the dissent of seven members of the Court of Appeals, the City successfully petitioned the United States Supreme Court for review of the Ninth Circuit's determination.

At oral argument on April 19th, the Supreme Court's most liberal justices expressed little sympathy for Sergeant's Quon's position. Justice Breyer repeatedly told Quon's counsel that he did not see anything unreasonable in the City's audit of the volume of text messages sent in order to get the billing for the account correct. Justice Ginsburg told Quon's counsel that she thought that the "oral policy" announced by the police lieutenant was solely limited to the billing of the text message pager, not a retraction of the overall City policy that there was no basis for employee privacy in such messages. Justice Sotomayor told Quon's counsel that his suggestion that the police sergeant himself could do his own audit of the text messages did not seem either reasonable or businesslike. Justice Stevens asked whether one might not assume that in the context of a SWAT team member whose job was essentially a "24/7" duty that the "whole universe" of such conversations would inevitably be the subject of public inquiry. Justice Kennedy appeared to agree with Justice Stevens that a "reasonable expectation" would be that such text messages would be "discoverable."

Quon is Significant Regardless of the Outcome

It is problematic to place great weight on questions posed by Justices at the time of oral argument, which is traditionally a method of probing counsel's position and not a time for enunciating a Justice's own conclusion. Nonetheless, a reading of the transcript of the argument suggests that Police Sergeant Quon may have a very difficult time sustaining his hard-won victory in the Ninth Circuit before the High Court.

There is one more important message for any California municipality in City of Ontario v. Quon: Litigation over privacy expectations with City employees can be horribly expensive and sometimes can end badly. Cities should carefully review their existing policy statements concerning the expectation of privacy (if any) of all forms of electronic communication and ensure that the written policy expressly disavows any oral modification of the written policy.

FOR ADVICE FROM RW&G ON ELECTRONIC COMMUNICATIONS BY PUBLIC EMPLOYEES AND PRIVACY ISSUES, PLEASE CONTACT NORMAN A. DUPONT, GENA M. STINETT, ROY A. CLARKE, OR ANY OF THE ATTORNEYS IN THE FIRM'S PUBLIC LAW AND LABOR & EMPLOYMENT DEPARTMENTS

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