Skip to content

Justices say employers can audit communication

Post categories

  1. Uncategorized
From the Summer 2010 issue of The News Media & The Law, page 22. The U.S. Supreme Court in June…

From the Summer 2010 issue of The News Media & The Law, page 22.

The U.S. Supreme Court in June ruled that a California police department had the right to search a sergeant’s text messages that were sent using a government-issued pager.

Though the unanimous ruling was narrow in nature — it warned against interpreting how the Constitution impacts “emerging technology before its role in society has become clear” — open records advocates are viewing the decision as a limited victory that, at the very least, signals that compliance with public records laws is one of many factors that should be considered when evaluating privacy concerns in light of new technology.

“Justice Kennedy specifically pointed out that a court that is evaluating privacy concerns in these situations would also have to consider compliance with state open records laws,” said Davis Wright Tremaine Partner Rochelle Wilcox, who drafted a friend-of-the-court brief for a group of media organizations, which included The Reporters Committee for Freedom of the Press.

“This case should rebut any claim that a government employee can exert an expectation of privacy that would bar the government from looking at these types of messages,” she added.

The case, City of Ontario v. Quon, began when the City of Ontario police department decided to search the text messages of SWAT team member and Police Sergeant Jeff Quon. The department had issued electronic pagers to Quon and the other officers for use in emergency response.  The police department told Quon that it was going to audit the messages sent on his device after he repeatedly exceeded the monthly limit. Though Quon reimbursed his employer for the resulting overage fees, the department justified the audit by saying it wanted to determine whether the existing message limit was too low and forced officers to pay for sending legitimate work messages. During the audit, the department found that only 10 to 15 percent of Quon’s messages were related to his work duties and of the remaining personal messages, many were sexually explicit. Quon argued that the city had violated his Fourth Amendment right to be free from warrantless searches, alleging that his supervisor had told him the messages would not be audited so long as he reimbursed the department for overage charges. The court, in an opinion authored by Justice Anthony M. Kennedy, disagreed with this conclusion. Two other justices wrote separate opinions that concurred with the outcome but explained their own reasoning.

“Because the search was motivated by a legitimate work-related purpose, and because it was not excessive in scope, the search was reasonable,” Justice Kennedy wrote. “As a law enforcement officer, he would or should have known that his actions were likely to come under legal scrutiny, and that this might entail an analysis of his on-the-job communications.”

“A public employee is not allowed to make a promise that would contravene disclosure policies of public records laws,” Wilcox explained. 

Though the court declined to establish any sort of test to determine whether or not there is a reasonable expectation of privacy when sending text messages on government-issued devices going forward, it said that in this case, the search was valid because there were reasonable grounds for believing it was necessary to determine whether the message limit was sufficient to meet the City of Ontario’s needs. Justice Kennedy pointed out that the department had carefully limited the search to messages sent during a two-month time period during work hours.

The court also disagreed with the ruling made by the U.S. Court of Appeals in Pasadena (9th Cir.) that the search was unreasonable because there were less-intrusive methods for the city to determine its text-messaging needs. “That the search did reveal intimate details of Quon’s life does not make it unreasonable, for under the circumstances a reasonable employer would not expect that such a review would intrude on such matters,” the court wrote.

Though the outcome in this case pleased open records advocates, a more uniform standard would ensure the public has access to information generated by new technology going forward.

“In this day and age, information revealed by texting and other emerging technologies will provide tremendous detail on a daily basis,” she said. “The messages can show us how the people we have put in a position to represent us are responding to our needs and doing their jobs,” Wilcox said.

For example, though the court agreed that auditing the messages Quon sent during work hours was reasonable, it is easy to imagine other scenarios when public employees, now tethered to electronic communications devices around the clock, could send work-related messages even when they were technically off duty. Whether a work-related message is sent from the office or while watching television at home, the public has the right to oversee the use of government resources, Wilcox noted.

Though the court stopped short of establishing such a uniform standard, Justice Antonin Scalia, while agreeing with the court in deciding the outcome of the case, wrote a separate opinion saying the court should have looked at the large questions posed by interpreting public records law in the age of e-mail, text messages, instant messages and Twitter.

“Applying the Fourth Amendment to new technologies may sometimes be difficult, but when it is necessary to decide a case we have no choice,” Justice Scalia wrote. "The-times-they-are-a-changin’ is a feeble excuse for disregard of duty.”