A California police department did not violate the constitutional privacy rights of an employee when it audited the text messages on a pager the city had issued him, the Supreme Court unanimously ruled this week.

 

The Supreme Court Decision: Ontario v. Quon, puts government employees on notice that electronic communications on devices provided to them may not be subject to the Fourth Amendment’s protection against unreasonable searches, as long as their employers have “a legitimate work-related purpose” for inspecting the communications.

 

“Cellphone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self-identification,” Justice Kennedy said. “On the other hand, the ubiquity of those devices has made them generally affordable, so one could counter that employees who need cellphones or similar devices for personal matters can purchase and pay for their own.”

The decision did not address the privacy rights of people employed by private companies.

 

The case, City of Ontario v. Quon, No. 08-1332, involved a member of the police special-weapons team in Ontario, Calif. The officer, Sgt. Jeff Quon, used a pager issued to him by the Police Department to send and receive messages that were, in the trial judge’s words, “to say the least, sexually explicit in nature.” A city policy on computer, Internet and e-mail use made clear that the city had the right to monitor such communications. The policy allowed “light personal communications” but said “users should have no expectation of privacy or confidentiality.” Sergeant Quon signed a statement agreeing to the policy. But the policy did not explicitly apply to text messages, and Justice Kennedy suggested that e-mail messages sent through the city’s servers might be treated differently from pager messages sent via an outside company.

 

The Police Department’s audit of pager messages, Justice Kennedy wrote, “was not nearly as intrusive as a search of his personal e-mail account or pager, or a wiretap on his home phone line, would have been.”

 

Sergeant Quon had argued that an informal policy instituted by a police lieutenant overrode the formal one, even if the formal one did apply to pager messages. The lieutenant for a time indicated that the pagers could be used for personal messages so long as the employees responsible paid for charges beyond a 25,000-character limit. The lieutenant eventually changed his mind, and the department’s internal affairs divisions audited the messages Sergeant Quon had sent during work hours for two months.

 

Sergeant Quon and a second officer, and the sergeant’s wife and mistress, sued the department, saying their Fourth Amendment rights were violated. The Supreme Court has said that public employers have wide latitude to search their employees’ offices and files. But it has also said that the Fourth Amendment has a role to play in affording the employees some privacy rights. In Sergeant Quon’s case, a jury found that the city had a good work-related reason to audit the messages — to see if the character limit made sense as a business matter. Given that jury finding, the trial judge ruled that the search had not violated the Fourth Amendment.

 

The United States Court of Appeals for the Ninth Circuit, in San Francisco, reversed the decision, saying that there would have been less intrusive ways to conduct the audit. For instance, it said, Sergeant Quon could have been given notice of the change in the informal policy, or been allowed to audit himself. Justice Kennedy assumed, without deciding, that Sergeant Quon had a reasonable expectation of privacy. Even so, he said, the city’s search was not unduly intrusive. The city, he wrote, “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.”