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June 21, 2010
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Ken Wallentine Law Enforcement and the Law
with Ken Wallentine

How text messaging became a Supreme Court case

City of Ontario, California v. Quon et al. is court’s first venture into public employees’ electronic privacy rights in communications through agency resources

In a 9-0 decision issued late last week, the U.S. Supreme Court sided with a California Police Department after Sergeant Jeff Quon and another officer sued Arch Wireless (the agency’s paging service provider) for privacy breaches. Quon’s text messages to his then-wife and his girlfriend, a police department employee, were provided to the department after the chief requested an audit of the text message usage to determine whether the department’s character limit was high enough to meet officers’ work communications needs. Quon sent messages that were described by the trial court as “sexually explicit in nature.” The department conducted an internal affairs investigation and disciplined Quon. The wife and mistress also joined the lawsuit as plaintiffs. A jury sided with the defendants.

However, the Ninth Circuit Court of Appeals reversed, holding that the search was unreasonable. The Supreme Court then agreed to consider the appellate court decision.

The department had a written policy that warned officers that use of department email, Internet and computer resources could be monitored. Even though limited personal use was permitted, the policy also stated that officers should not expect that their electronic communications made through department resources were private or confidential. Quon acknowledged that he was aware that the policy applied to him, but he argued that the policy did not include text messaging. Moreover, he said that he had been told that he could use his pager for personal messages as long as he paid the over-limit charges on the account.

New Ground for the Supreme Court
This case marks the first venture of the Supreme Court into the arena of public employees’ electronic privacy rights in communications through agency resources. The Court was asked to weigh the officers’ privacy rights and right to be free from unreasonable seizures of their communications against the government’s interest in managing the public workplace. Two decades ago, in Ortega v. O’Connor, the Supreme Court considered the search of a public employee’s desk. The Court held that a public employer enjoys broad authority to search the physical workplace as long as the employer had a “work-related purpose” for the search and the search is not “unduly intrusive.”

In Quon, the Court now provides some limited guidance for a public employer’s right to search the cyber-workplace.

Justice Kennedy’s opinion for the Court assumes that the officers held a reasonable expectation of privacy in their text messages. However, the Court did not conclusively resolve this issue and public employers are free to argue in future cases that a public employee does not have an expectation of privacy in electronic communications facilitated with agency resources. The Court easily identified a work-related purpose for reading the text messages. The department “had a legitimate interest in ensuring that employees were not being forced to pay out of their own pockets for work-related expenses, or on the other hand that the city was not paying for extensive personal communications.” The Court noted that the officers held, at best, only "a limited privacy expectation" in the text messages. Justice Stevens wrote that Quon “should have understood that all of his work-related actions–including all of his communications on his official pager — were likely to be subject to public and legal scrutiny.” The Court held that the search was not excessive in scope. Thus, the search was reasonable.

What Does Quon  Mean?
Foremost, Quon  is an uncomfortable reminder to officers that privacy rights in the public safety workplace can be limited. One observer suggested that officers must simply assume that electronic communications will leak and officers should anticipate the consequences. Quon also reminds agencies that they should give advance warning of any monitoring. That gives officers fair notice of the agency expectations. An explicit policy known to all provides legal protection for officers and departments.

Officers and agencies should be cautious about a broad reading of the Quon decision. The Court explicitly pulled the reins against an application of its holding that strays very far from the facts of the case.

Justice Kennedy wrote, “The Court must proceed with care when considering the whole concept of privacy expectations in communications made on electronic equipment owned by a government employer.” Moreover, agencies and officers should explore whether state privacy laws might create a different standard. Some states have statutes that require an employer to notify an employee when electronic communications are being monitored.

The Quon decision signals that the ever-changing world of smart phones, text messages, social media websites, blogs, photo-sharing websites, and the like are fair game for battles over who controls privacy rights for communications posted or sent by public employees using some government resources. Quon also puts agencies on notice that they must state the agency policy up front, train employees on the policy, and be very careful to have the policy-monitoring capability to stay on top of developments in this rapidly-evolving area of the law. An agency without a solid policy, backed by constant monitoring, is asking for trouble when it comes time to enforce or defend the policy.

Policy issues such as work-related social media, email and Internet use are rapidly changing. Agencies that do not enjoy the luxury of a skilled attorney assigned to continually monitor and guide agency policy should carefully consider a contract service that monitors changes in the legal and operational arenas, evaluates those changes and formulates the best practice policy to help manage the agency’s risk. The leading public safety risk management firm providing this service is Lexipol.

One thing is certain — Quon is merely the first of many decisions that will shape public employees’ privacy rights in cyberspace.


Read more about City of Ontario v. Quon, No. 08-1332 (June 17, 2010) on the Supreme Court’s website.

 


About the author

Ken Wallentine is Chief of Law Enforcement for the Utah Attorney General. The views expressed herein are his own. A veteran officer and attorney, his most recent book, The K9 Officer’s Legal Handbook is now available from LexisNexis. For more information about this valuable new book, go to www.kenwallentine.com. Chief Wallentine publishes Xiphos, a free biweekly legal update newsletter for law enforcement officers. Free subscription information is available at his website.
Contact Ken Wallentine





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