WASHINGTON — The Supreme Court agreed on Monday to decide whether a police department violated the constitutional privacy rights of an employee when it inspected personal text messages sent and received on a government pager.
The case opens “a new frontier in Fourth Amendment jurisprudence,” according to a three-judge panel of an appeals court that ruled in favor of the employee, a police sergeant on the Ontario, Calif., SWAT team.
Orin S. Kerr, an authority on the Fourth Amendment at George Washington University’s law school, said the case was simultaneously significant and idiosyncratic. “This is the first case on Fourth Amendment protection in data networks,” Mr. Kerr said. But the case arose from unusual circumstances, making it fairly likely that the eventual Supreme Court ruling will be narrow.
The Supreme Court has given public employers wide latitude to search their employees’ offices and files. But it has also said that the Fourth Amendment, which forbids unreasonable government searches, has a role to play in any analysis of that latitude.
The Ontario Police Department had a formal policy reserving the right to monitor “network activity including e-mail and Internet use,” allowing “light personal communications” by employees but cautioning that they “should have no expectation of privacy.” It did not directly address text messages.
Members of the department’s SWAT team were given pagers and told they were responsible for charges in excess of 25,000 characters a month. Under an informal policy adopted by a police lieutenant, those who paid the excess charges themselves would not have their messages inspected.
The lieutenant eventually changed his mind and ordered transcripts of messages sent and received by Sgt. Jeff Quon. In one month in 2002, only 57 of more than 450 of those messages were related to official business. According to the trial judge, many of the messages “were, to say the least, sexually explicit in nature.”
Sergeant Quon and some of the people with whom he messaged sued, saying their Fourth Amendment rights had been violated. Judge Kim McLane Wardlaw, writing for a three-judge panel of the United States Court of Appeals for the Ninth Circuit, in San Francisco, said the department’s formal policy had been overridden by the “operational reality” of the lieutenant’s informal policy.
Dissenting from the full Ninth Circuit’s decision not to rehear the case, Judge Sandra S. Ikuta said the panel had violated “the dictates of reason and common sense” and had hobbled “government employers from managing their work forces.”
The City of Ontario and its police department, in asking the Supreme Court to hear the case, said “a lower-level supervisor’s informal arrangement” should not be allowed to trump “the employer’s explicit no-privacy policy.”
“It is not objectively reasonable to expect privacy in a message sent to someone else’s workplace pager,” the brief said, “let alone to a police officer’s department-issued pager.”
The Supreme Court’s decision, the brief went on, will affect “a seemingly never-ending stream of new technologies.”Though the legal issue in the case, City of Ontario v. Quon, No. 08-1332, concerns only text messaging in government workplaces, the Supreme Court’s decision may provide hints about its attitude toward privacy in the Internet era more generally.
The larger question, Judge Stephen G. Larson of the Federal District Court in Riverside, Calif., wrote in declining to dismiss Sergeant Quon’s case before trial, is this: “What are the legal boundaries of an employee’s privacy in this interconnected, electronic-communication age, one in which thoughts and ideas that would have been spoken personally and privately in ages past are now instantly text-messaged to friend and family via hand-held, computer-assisted electronic devices?”
The U.S. Supreme Court’s Decision; As framed by the Court, the issue presented was the “narrow” one of whether or not a government employer has the right, under the circumstances presented, to read text messages sent and received on a pager the employer owned and issued to an employee, without violating the Fourth Amendment ban on unreasonable searches and seizures.
Preliminarily, the Supreme Court refused to become embroiled in whether the police lieutenant’s comment — that while employees’ text messages “could be audited,” he did “not intend” to do so if the employees paid the overages — did or did not override the police department’s stated, written e-mail and text message policy and thereby create an expectation of privacy. Nor did the Supreme Court want to take on the general issue of whether or to what extent text messages, or other forms of electronic communication engaged in by employees, should or should not enjoy general privacy protection. “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. The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear.” For that reason, “[p]rudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices.”
Instead, the Court assumed, for purposes of argument, that Quon had a reasonable expectation of privacy and that the City’s review of the messages constituted a “search” to which the Fourth Amendment applied. The Court also assumed that the principles the Court had announced in a prior case, O’Connor v. Ortega, 480 U.S. 709 (1987), relating to a government employer’s search of an employee’s office including his desk and file cabinet, apply “with at least the same force” when the employer encroaches on the employee’s privacy “in the electronic sphere.” That left only the question of whether the search was “reasonable,” since, under the Fourth Amendment, only “unreasonable” warrantless searches are proscribed.
In testing “reasonableness,” O’Connor focused on two things: first, whether there was a legitimate, work-related justification for the search at its inception, and second, whether the “measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the circumstances giving rise to the search.” The Court held that what the police department had done in Quon’s case passed both tests. The proffered work-related reason — that the City needed to determine whether the text character limit in its contract with Arch was sufficient, or whether employees might have been having to bear the cost of work-related
excess messages — was, according to the Court, sufficient to justify the search. The methods employed were directed toward that purpose.
Nor was the search excessively intrusive. The City had confined its review of Quon’s messages to a two-month period, despite his having exceeded the limit during other months as well; it had also redacted, and had not reviewed the transcripts of, any text messages sent by Quon while off-duty. Ultimately, the Court reasoned, any reasonable privacy expectation Quon had would have been seriously limited where the City never assured him of privacy in connection with the text messages, where he knew that an audit of the messages was at least a possibility, and where he, a law enforcement officer, should have known that his conduct could be subject to “legal scrutiny.” Thus the search was reasonable and not a Fourth Amendment violation. Significantly, the Court went on to conclude that given that the search was not unreasonable as to Quon, likewise it was not unreasonable to third parties who had sent text messages to Quon.
With regard to the Ninth Circuit’s belief that the search was unreasonable since less intrusive means for conducting it were possible such as asking Quon to do it himself, the Supreme Court observed that “this approach [is] inconsistent with controlling precedents. This Court has ‘repeatedly refused to declare that only the “least intrusive” search practicable can be reasonable under the Fourth Amendment.” As the Supreme Court observed, the “least intrusive” rationale employed by the Ninth Circuit to hold the search unreasonable “could raise insuperable barriers to the exercise of virtually all search-and-seizure powers, because judges engaged in post hoc evaluations of government conduct can almost always imagine some alternative means by which the objectives of the government might have been accomplished.”
Significance for Private Employers; Although the Fourth Amendment does not apply to private employers, the Court’s analysis of Quon’s privacy expectation and the City’s obligations in connection with a legitimate work-related purpose is instructive. The Supreme Court explicitly recognized as much in its decision, stating: “For these same reasons — that the employer had a legitimate reason for the search, and that the search was not excessively intrusive in light of that justification — the Court also concludes that the search would be ‘regarded as reasonable and normal in the private-employer context. . . .” (Emphasis added)
The bottom line: This decision strongly suggests that where an employer (a) has clearly written, well-disseminated policies limiting or eliminating any expectation of privacy and (b) a provable, legitimate business purpose for conducting a search or review of electronic communications found on employer equipment, that search or review may be undertaken without violating employee privacy interests. The Supreme Court’s holding also underscores that a search should not be found excessively intrusive simply because less intrusive means may have been available, thereby enforcing the notion that with a legitimate business purpose the employer has some latitude in determining how to approach its review of electronic communications.
Whether or not the California Supreme Court would find that the California Constitution provides a reasonable expectation of privacy in an employee’s text messages is currently unknown. Employers are, however, best advised to do what is necessary to eliminate any expectation of privacy for electronic communications on workplace equipment.
No comments:
Post a Comment