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Texting and privacy on the job

At about 11 a.m. Monday, the Supreme Court will hear one hour of oral argument in City of Ontario, et al., v. Quon, et al. (08-1332).  Arguing for the California city and its police department will be Kent L. Richland of Greines, Martin, Stein & Richland in Los Angeles.  The federal government, represented by Deputy Solicitor General Neal K. Katyal, will have 10 minutes as amicus urging reversal of the Ninth Circuit Court decision.  Representing four individuals who sued the city will be Dieter C. Dammeier of Lackie, Dammeier & McGill in Upland, CA.


The ubiquitous personal electronic device — pager, cellphone, “smart phone,” PDA — is emerging as a centerpiece in Digital Age legal controversy, including constitutional disputes when a government agency gets involved in regulating the use of these convenient computer-assisted, hand-held items.   The Supreme Court has taken on a case to lay down some basic constitutional ground rules on when the users of those devices — at least in government workplaces — can claim a right of privacy, and sue to enforce the right.


The Ninth Circuit Court two years ago found itself standing on what it called “a new frontier in Fourth Amendment jurisprudence that has been little explored.”  It explained: “The extent to which the Fourth Amendment provides protection for the contents of electronic communications in the Internet age is an open question.”  It did not attempt to answer all of the potential constitutional questions, focusing instead on a basic one: whether a user of a text messaging service has a “reasonable expectation of privacy” in the content of messages exchanged while at work.  Answering the question “yes,” the lower court did so only in the context of a government workplace; the Fourth Amendment would not reach into a private workplace, unless the government were taking some action there.

It has been long been clear that government employees have some privacy while they are at work in their public jobs.  The Supreme Court reinforced that notion a quarter-century ago in O’Connor v. Ortega, declaring that “individuals do not lose their Fourth Amendment rights merely because they work for the government instead of a private employer….We reject the suggestion…that public employees never have a reasonable expectation of privacy in their place of work.”  That 1987 decision — still regarded as the Court’s leading pronouncement on privacy in the government work setting — involved the search of a California state employee’s desk, files and cabinets in his office, turning up only personal items; the worker’s work-related files were kept elsewhere.

The O’Connor precedent’s application to texting to and from a government employee’s pager is now before the Court in a new case from California, City of Ontario, et al., v. Quon, et al. It has a special factual twist that may, or may not, make a difference: the pagers involved were provided to members of the Ontario Police Department’s SWAT team by the Department itself, for official use. That, however, only refines the issue before the Court into a more specific question: no matter who owns the device, is there a right of privacy in the text messages to and from the police officer using the device?  A related question is how or when that right might be violated by a government agency or supervisor.

Ontario is a city of about 175,000 people, located thirty-five miles east of Los Angeles, and calling itself “Southern California’s Next Urban Center.”  Nine years ago, it began paying a service provider for two-way messaging services.  Pagers for using the service were provided to city employees, including police officers, for use in their jobs.  The city followed a general policy of limiting the use of computers and other electronic devices to official, non-personal communications (although there is a dispute whether that policy specifically covered pagers).  The pagers had a limit on use, and texting beyond that resulted in overcharges.

Within the Police Department, supervisors became concerned that officers were running up overcharges with some frequency, and perhaps using them for personal texting.   A police lieutenant was responsible for collecting overcharges from officers.  One of the police officers who had run up such charges was Sgt. Jeff Quon of the SWAT team.  The lieutenant told Quon that text messages would not be audited to see if the device was being misused, but that he would expect the officer to pay personally for overcharges.  “I didn’t want to get into the bill-collecting thing,” the lieutenant said later. Quon, he added, “needed to pay…for the overage so we didn’t do the audit.”  Another member of the Department hierarchy, however, has recalled that Quon was told that the text messages were considered public records, and could be audited at any time.

City officials decided to do an audit of the pagers’ use, obtaining transcripts of them from the service provider (Arch Wireless Operating Co., Inc., now a part of USA Mobility Wireless, Inc — the nation’s largest provider of electronic paging services).  The audit revealed that Quon had been sending personal messages, sometimes with sexual content, to his wife, Jerilyn (from whom he was separated), and to a police dispatcher with whom he reportedly was having an affair, April Florio.  Quon also had sent numerous personal messages to another SWAT team officer, Sgt. Steve Trujillo.  The results were turned over to the Department’s internal affairs office, and Quon was found to have violated city policy on use of his pager.

Sgt. Quon, his wife, Ms. Florio, and Sgt. Trujillo sued the city and Arch Wireless in federal court, claiming violations of their Fourth Amendment right of privacy, violations of their parallel privacy rights under the California constitution, and violations of the federal Stored Communications Act by Arch Wireless for disclosing the content of the text messages without consent from Sgt. Quon.  In U.S. District Court, a jury ruled that the Police Department was only seeking to check out whether the restriction on pager use was working, so the federal judge found no Fourth Amendment violation.  The Ninth Circuit disagreed, ruling that the city’s review of the texting transcripts violated the Fourth Amendment right of privacy, concluding that Quon had been told that his messages would not be audited if he paid any overcharges due.  The appeals court said the scope of the transcript review was too broad.  (Rehearing en banc was denied by a divided Circuit Court, over seven judges’ dissent; the federal government had joined the city in asking for review by the full Circuit bench.)

(The Circuit Court also ruled against Arch Wireless, finding a violation of the Stored Communications Act.  Arch Wireless sought to challenge that ruling in a separate petition to the Supreme Court — USA Mobility Wireless v.Quon, et al. (08-1472)– but the Supreme Court denied review of that appeal, without explanation, as usual, on Dec. 14.  That denial came on the same day the Court voted to hear the city’s petition on the Fourth Amendment issue.)

Petition for Certiorari

The city of Ontario, along with its Police Department and Police Chief Lloyd Scharf, in April last year took the case to the Supreme Court, focusing solely on the federal Fourth Amendment question.  The petition asked the Justices to rule on three questions: whether Sgt. Quon had a “reasonable expectation of privacy,” on the premise that some personal use of the pagers was allowed by a superior in the face of a policy against that, whether the city could have used a less-intrusive means of checking for misuse of pagers (an issue on which lower courts were said to be divided), and whether those who texted Sgt. Quon had an expectation that their messages would not be read by his superiors.

The petition, though, sought to enhance the importance of the case beyond its specifics, arguing that “public and private employers alike typically have in place policies establishing that employees should have no expectation of privacy in electronic communications and other computer usage on employee-owned equipment.”  Those policies, it said, are intended to prevent abuse and to promote public safety and security.  It contended that the Circuit Court’s articulation of a private expectation in this context “literally ‘wowed’ privacy advocates, and it surprised more mainstream media.”

To have a Fourth Amendment privacy right, it noted, a public employee must have an expectation of privacy that the public is prepared to consider reasonable.  That is definitely not the case, it said, for members of a police SWAT team.

Relying heavily upon a standard that the city said the Supreme Court had established in the O’Connor decision in 1987, that the concept of reasonableness under the Fourth Amendment depends upon “operational realities of the workplace,” the city said that a SWAT team exists to function in “highly charged, highly visible situations,” so it is unreasonable to expect that messages sent and received in that context would remain private.   It also contended that there was a well-established split in the circuit courts on whether the “least intrusive means” analysis has any role to play in Fourth Amendment reasonableness analysis.   And, it asserted that the Ninth Circuit had stretched the concept of privacy to a “startling” degree in applying it to those who texted with a SWAT team member.  (Organizations of local governments in California supported the city’s petition.)

Sgt. Quon and the other individuals involved waived their right to respond to the city appeal, but the Supreme Court then asked for a response.  In a brief in opposition, the officers and Mrs. Quon argued that the Ninth Circuit had done nothing more than faithfully apply the principles of the O’Connor precedent, that the city had simply tried to “inflate this case” case into a supposed circuit conflict, and that the city, in fact, had been “its own worst enemy” by deciding on its own to allow employees “to maintain their privacy.”

The Court granted review on Dec. 14 last year and simultaneously refused to hear the service provider’s separate petition, thus leaving intact the holding that Arch Wireless had violated the Stored Communications Act.  As granted, the case is confined entirely to federal constitutional issues under the Fourth Amendment.

Merits Briefs

It was no surprise that the city would seek to gain traction with the Court with a merits brief emphasizing what, up-front, it called “the most salient facts of the case.”  But the articulation of the facts was itself argumentative.  It said the pager was provided to Sgt. Quon “to facilitate SWAT operations.”  It said that the city had “a written no-privacy policy that applied to the pager.”  And it said that “any messages exchanged on the pager were potentially subject to disclosure under the California Public Records Act.”  And, as expected, the brief repeated the city’s amazement at the “wow” factor of the Ninth Circuit’s privacy conclusion.

On the constitutional argument, tied closely to the principles laid down by the Supreme Court in O’Connor, the city’s brief argued that the Ninth Circuit went wrong in three ways: first, it deviated from the workplace “realities” calculus, interpreting the city’s no-privacy policy as having been overturned by a lower-level supervisor’s “informal arrangements” that also ran counter to public records disclosure law, thus hobbling “government employers from managing their workforces”; second, it demanded that public employers find “less intrusive methods” of monitoring their workers when that is not a part of Fourth Amendment analysis and when that, too, complicates managing public workforces; and, third, it went further astray, constitutionally, in extending privacy expectations to those who communicate electronically with a police officer on a device supplied by his employer, further intruding on internal government employee management practices.

The merits brief also sought to diminish the scope of Sgt. Quon’s privacy claims in the contents of his e-mails, saying he had only a “minimal interest,” not strong enough to compare with the city’s interest in a police department’s management of “the efficient, safe, and effective uses of its resources.”

The merits brief for Sgt. Quon and his texting partners predictably sought to counter the city’s version of the facts, arguing that the city had focused carefully “only on those facts which support their argument.” Offerings its own interpretation of the facts, the brief quoted the Ninth Circuit as having said that the “operational realities” in the Ontario Police Department were “dramatically transformed” when the police lieutenant made a specific choice not to enforce the general no-privacy policy, written for computers, against pager use.  Employees, the brief added, were never told explicitly, in writing, that pagers were covered by the policy.  After first saying that the policy did apply to pagers, the lieutenant “implemented a different policy guaranteeing” privacy for department employees.

On the legal merits, the Quon brief insisted that the Ninth Circuit, even while talking briefly about a “new frontier” of jurisprudence, had in fact applied faithfully the principles of the O’Connor decision.  Sgt. Quon, like the state hospital employee in O’Connor, had not forfeited his privacy rights by working for a public employer, the brief noted.

Disagreeing with one facet of the Ninth Circuit decision, the Quon brief said that the audit of the sergeant’s text messages was not justified at the time the city undertook it, because there was no basis for “suspecting that the search” was necessary, since the lieutenant’s refusal to engage in auditing e-mails made such an audit unnecessary.  But, beyond that, the brief said, the Circuit Court was correct in finding that the search, once undertaken, went too far.  That is the analysis the Circuit Court used, according to the brief, not a “less-intrusive means” approach.

On the Circuit Court’s recognition of privacy rights for the sergeant’s texting partners, the brief on their side said this was based on an interpretation of a text message as being the equivalent of a telephone call or a letter.

The amici filings in the case — a modest number, given the constitutional significance of the case — are led by a filing by the Justice Department, expressing strong worry about what it sees as the potential of the Ninth Circuit ruling for intruding on government management of “hundreds of thousands of wireless communications devices, computers, and similar equipment for the official use of its employees, frustrating law enforcement into such matters as public corruption through investigation of government-owned computers and other devices, and short-circuiting the government’s regulation of electronic privacy through various federal oversight programs.”

The Department’s legal analysis focused heavily on the broader power the government has as an employer than it does in performing its other functions.  A government employer, it argued, has broad powers to set rules, and those rules directly affect what employees may expect in the public workplace.  And,while it stressed that a clear-cut government policy against private use of electronic devices reinforces the notion that a worker has no privacy expectation when using the device, the Department brief also argued that such an expectation is not reasonable even when there is no official policy, at least when the device is provided by the government at public expense for use in performing public duties.

If anyone who claims a privacy right goes somewhere to practice that right, and does so at someone else’s invitation, “the terms of the invitation naturally affect whether individual reasonable expect privacy if he accepts,” the brief said.  A government employee, present in the workplace at the invitation of the employer, cannot expect to make private use of that workplace against the government’s wishes to the contrary, the brief contended.  What Sgt. Quon had with him at work, the brief stressed, was not a personal item, but an electronic device supplied to him by the government with limited options on how and when it could be used.

For the most part, the other amici filings are predictable: government agencies supporting the city of Ontario’s defense of public management of the workplace, and privacy advocates supporting the claims of Sgt. Quon and his texting partners in what they had said to each other in messages meant only for each other, not for a government auditor.

There is one brief, though, that breaks that pattern.  A coalition of newspapers, wire services, and press advocacy organizations lines up on the city of Ontario’s side, primarily to make the argument that the Court should preserve news organizations’ — and the public’s — opportunity to gain access through public records laws to government records of e-mails and other communications of people on the public payroll.   The mandated disclosure under public records and freedom-of-information laws, this brief argued, “undercuts any public employee’s claim to privacy in electronic communications conducted on government-issued equipment.”  Government employees, and especially police, have “a powerful ability to affect the lives of the citizens with whom they interact,” so there must be available means to monitor how that power is used, the brief asserted.


This is another case in which the Court’s view of the facts may powerfully influence its reaction to the constitutional arguments.  If, as the O’Connor precedent seems to require, the Court must look at the particular facts that each public employee privacy case presents, the Justices must satisfy itself that it knows what those facts actually are.  It thus will find itself moving past the “spin” that each side puts on the facts on operations of the Ontario Police Department, to see if it can establish what actually happened.  Just as one example: suppose that the Court were to view the actions of the police lieutenant as crucial to the constitutional equation, these are some of the factual disputes it will have to resolve: what did the lieutenant say about use of the devices, when did he say it, how binding was what he said, did he switch later and give actual — or implied — permission to do private texting, how did Sgt. Quon and others on the force interpret what they were told by the lieutenant? Or take another example: did the city have a no-privacy policy that actually applied to pagers?

Although the Justices usually can rely on the lower courts’ articulation of the facts in a case, it is evident, from the exchanges in the en banc Ninth Circuit when it passed up further review, that not even those judges, closer to the scene, could agree on what the facts are.

Moving beyond that fundamental task, the Court may well have to provide some clearer guidance than it has up to now about what it meant, in O’Connor, about taking into account the “operational realities of the workplace” in evaluating the breadth of public employee privacy and the scope of Fourth Amendment protection for that privacy.  It is not likely to be satisfied that, if the government simply supplies a communications device for its workers, that settles the question in a way that denies any privacy interest in the use of that device.

And the Court may well feel a need to be more specific in its declaration of what a government agency must do in order to put its workers on clear notice about the use of equipment it provides for their on-the-job use.  It is not likely to go for the simplistic argument that such an agency must simply declare, flatly, that no personal communications can ever occur on a government-provided device.  But going beyond that simplicity may be a challenging task.

It is unclear whether the Court, in finally resolving this case, will produce a ruling that lays down new standards for electronic privacy, as a constitutional phenomenon.  Given the speed with which technology is supplying ever-new modes of communication, the Court may well be cautious about crafting an opinion that seems closely tied to the texting methodology of today.  In the Digital Age, technology-specific court rulings have a way of growing out-dated very rapidly.