Court Declines to Set Privacy Standard on Electronic Devices

Scalia Concurs, but Criticizes Majority for 'Opaque' Opinion

On June 17, 2010, the Supreme Court handed down Ontario v. Quon, in which it unanimously declined to articulate a clear rule governing Fourth Amendment expectations of privacy in work-issued electronic communication devices, instead narrowly holding that a particular employee's rights were not violated.

The City of Ontario, Calif., issued police department employees pagers equipped with text-messaging capabilities. Each employee was given an allotment of text messages per month. SWAT team officer Jeff Quon exceeded his quota repeatedly, and as a result his text message records were audited by the city over Quon's objections. The audit revealed that many of Quon's text messages were "not work related, and some were sexually explicit." Quon was disciplined for sending personal text messages on a work-issued pager. He sued the city in federal district court in the Central District of California under 42 U.S.C. §1983, alleging that the audit violated his Fourth Amendment right against unreasonable searches.

On Quon's summary judgment motion, the district court concluded that the audit was legitimate only if the city wanted to audit to the pager to determine the efficacy of the department's policy regarding text messaging limits, and not if the city wanted to simply see if Quon was "wasting time." At trial, the jury concluded that the city's intent in conducting the audit was legitimate, and the court granted the city's summary judgment motion on the ground that it did not violate the Fourth Amendment. The 9th Circuit reversed in 2008, holding that Quon had a reasonable expectation of privacy in his text messages, and that the search was not reasonable even if conducted for legitimate, work-related purposes because the city could have assessed its text messaging policy in a less intrusive way. In 2009, the 9th Circuit denied a petition for rehearing en banc, with eight circuit court judges dissenting.

The Supreme Court granted certiorari only on Quon's Fourth Amendment claim, leaving intact the 9th Circuit's holding that the wireless services provider, Arch Wireless, violated the Stored Communications Act (SCA), 18 U.S.C. § 2701 et seq., when it turned over records to the city.

In the majority opinion by Justice Anthony Kennedy, the Court declined to lay down a clear rule that would "define the existence, and extent, of privacy expectations enjoyed by employees when using employer provided communication devices," citing the constantly evolving nature of the technology and cultural attitudes towards such technology. The Court noted that the pervasiveness of electronic communication devices may "strengthen the case for an expectation of privacy," but also observed that the "ubiquity" and affordability of the devices may strengthen the argument that there is no expectation of privacy in a work-issued pager, because one could purchase a separate pager for personal communication if need be. The Court found that a "broad holding concerning employees' privacy expectations vis-à-vis employer provided technological equipment might have future implications for future cases that cannot be predicted. It is preferable to dispose of this case on narrower grounds." Ontario v. Quon, 130 S. Ct. 2619 (2010)

The Court assumed arguendo that Quon had an expectation of privacy with regard to his pager, and that the audit constituted a search under the Fourth Amendment.

Citing tests articulated in O'Connor v. Ortega, 480 U.S. 709 (1987), the Court concluded that the audit was a reasonable search under the Fourth Amendment. In this case, Quon knew the pager could be audited at any time, and knowing whether the texting overages were the result of misuse by Quon or a reason to increase the monthly limit by the city was a "legitimate work-related rationale" for the city to perform the audit. Kennedy wrote that because the city issued the pager to Quon to help him respond to emergencies quickly, "Quon could have anticipated that it might be necessary to access" the messages to assess his team's performance. Kennedy also wrote that because the Supreme Court "repeatedly held" in previous cases that the government need not conduct searches in the "least intrusive" way, the 9th Circuit erred in concluding that the city needed to do so.

Justice Scalia concurred in the judgment, but disagreed with the majority's refusal to decide what constitutes a reasonable expectation of privacy in an employee's electronic communications. Scalia criticized his colleagues for what he viewed as shirking their responsibility as jurists. Scalia wrote "[a]pplying the Fourth Amendment to new technologies may sometimes be difficult, but when it is necessary to decide a case we have no choice. The Court's implication that where electronic privacy is concerned we should decide less than we otherwise would—or that we should hedge our bets by concocting case-specific standards or issuing opaque opinions—is in my view indefensible."

Scalia also wrote that by not articulating a definitive privacy standard, the Court would leave litigants and lower courts without ascertainable and workable legal standards in future cases, cautioning that parties would take Quon as controlling, rather than as the "instructive" case Kennedy said it was.

News media advocates had expressed concerns about the case's implications for government transparency and newsgathering. The Reporters Committee for Freedom of the Press (RCFP) filed an amicus brief in support of Ontario, arguing that Quon had no reasonable expectation of privacy in a government-issued pager because, under the California Public Records Act (CPRA), Cal. Gov't Code § 6250, et seq., text messages are public records because the law covers writings "transmitted through electronic mail or facsimile ... and every other means of recording upon any tangible thing any form of communication or representation." If the Court found a strong Fourth Amendment right to privacy in Quon's text messages, the scope and effectiveness of the CPRA—and analogous statutes in virtually every other state—would diminish because government employees could claim a similar right to privacy in other documents, the brief contended.

Reactions to the Quon decision were mixed. Professor Joshua Dressler, an Ohio State University Law School professor who specializes in the Fourth Amendment, told The Washington Post that the Court was wise to "punt" on the issue of electronic privacy and not "make broad announcements regarding our rights in this new world in which we live." Others criticized the Court for failing to establish clear standards for privacy. Marc Rotenberg, Executive Director of the Electronic Privacy Information Center, said in a June 22 letter to the editor of The New York Times that Quon could have been the 21st Century's equivalent of Katz v. United States, 389 U.S. 347 (1967), in which the Supreme Court ruled that a wiretap of a public pay phone violated the an individual's reasonable expectation of privacy under the Fourth Amendment. Rotenberg said that in Quon, the Court "missed an important opportunity ... to update the law and protect privacy as new technologies evolve."

- Geoff Pipoly
Silha Research Assistant

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This page contains a single entry by cla published on September 10, 2010 2:33 PM.

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