June 17, 2010

Supreme Court Decides City of Ontario v. Quon

On June 17, the Supreme Court decided City of Ontario v. Quon, No. 08-1332, holding that a municipality did not conduct an unreasonable search under the Fourth Amendment when it obtained and reviewed transcripts of personal text messages that a police sergeant sent and received on a pager owned by the police department.

The City of Ontario, California, contracted with a provider to provide pager services for city employees. Its contract included a monthly limit on the number of characters each pager could send or receive, and the city required employees who exceeded this monthly limit to reimburse it for excess charges. When respondent Jeff Quon exceeded his limit for several months running, the police chief decided to investigate whether the existing limit was too low, forcing officers such as Quon to pay for work-related messages. The chief therefore requested transcripts of Quon's text messages. When it reviewed these transcripts, the city discovered that many of them were not work-related and some were sexually explicit. It also found that Quon had sent some of the non-work-related messages during work hours. As a result, the city disciplined him.

Quon sued, claiming that he had a reasonable expectation of privacy in his messages and that the city's review therefore violated his rights under the Fourth Amendment against unreasonable searches. The district court held that such a reasonable expectation existed but that the city's review of the messages was reasonable under the circumstances. The Ninth Circuit reversed, holding that the search was not reasonable and that there were less intrusive means by which the police chief could have determined whether the usage limit was too low.

The Supreme Court reversed. It avoided the question of whether a reasonable expectation of privacy existed, stating, "The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear." The Court also recognized the complexity of determining a public employee's expectation of privacy, given both the potential for litigation involving the public employee's actions and the need for compliance with state open records laws.

In deciding the case on narrower grounds, the Court assumed for purposes of its decision that (1) Quon had a reasonable expectation of privacy in the text messages, (2) the city's review of the transcripts constituted a search under the Fourth Amendment, and (3) the principles applicable to search of a physical space also apply in the electronic sphere. The Court then held that the "special needs" of the workplace justified the warrantless search. It held that the search satisfied the test set forth in O'Connor v. Ortega, 480 U.S. 709 (1987), that a warrantless search may be conducted for "noninvestigatory, work-related purposes" or for the "investigation of work-related misconduct" if it is "justified at its inception" and if "the measures adopted are reasonably related to the objectives of the search and not excessively intrusive."

Justice Kennedy delivered the opinion of the Court, in which Chief Justice Roberts and Justices Thomas, Ginsburg, Breyer, and Sotomayor joined and in which Justice Scalia joined in part. Justice Stevens filed a concurring opinion. Justice Scalia filed an opinion concurring in part and concurring in the judgment.

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