The United States Supreme Court has today reversed a decision of the Ninth Circuit Court of Appeals that had protected a public employee’s expectation of privacy in pager text messages. The case is City of Ontario, California v. Quon, No. 08-1332. The bottom line for whistleblowers is that they should not conduct whistleblowing or other personal business on computers, phones or other devices provided by their employers.

The City of Ontario had issued pagers to City employees, including Quon, and permitted the employees to use the pagers for personal matters.  To assess whether the service provider’s existing character limits were reasonable, the City asked for and received a transcript of Quon’s text messages. Lo and behold, some of them were sexually explicit. The City referred the text messages to Internal Affairs to investigate whether discipline was appropriate.  Quon and the non-employee persons which whom he exchanged the messages brought suit against the City and the service provider for the invasion of their privacy. They relied on the Stored Communications Act (SCA), 18 U. S. C. §2701, and the Civil Rights Act of 1871, 42 U. S. C. §1983.

A jury determined that the City had a legitimate purpose to request the text messages, but the Ninth Circuit reversed, holding that the search was unreasonable because the City had less invasive means of assessing how many text messages it should pay for. The Supreme Court agreed to hear the appeal of the City of Ontario, but not the appeal by the service provider.

The majority’s opinion recognizes that, "The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear." It adds, "Prudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices." The Court accepted an argument from the Brief for Electronic Frontier Foundation in saying that, "many employers expect or at least tolerate personal use of such equipment by employees because it often increases worker efficiency." It also noticed that two states have passed laws requiring employer notification to employees about monitoring of their electronic communications. Del. Code Ann., Tit. 19, §705 (2005); Conn. Gen. Stat. Ann.§31–48d (2003).

Speaking of modern technology, the Court revealed that its viewpoint comes from the affluent in saying, "one could counter that employees who need cell phones or similar devices for personal matters can purchase and pay for their own." Lower income workers, of course, would not have the same opportunities.

The Court recognizes that when it considered whether government employers need a warrant to search employee workspaces, the Court did not come to agreement. O’Connor v. Ortega, 480 U. S. 709, 711 (1987). Justice Scalia concluded that the Fourth Amendment requires a warrant the same as it does outside of government offices. Four justices said that government could make a warrantless search under these conditions:

Under the approach of the O’Connor plurality, when conducted for a “noninvestigatory, work-related purpos[e]”or for the “investigatio[n] of work-related misconduct,” a government employer’s warrantless search is reasonable 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 in light of’” the circumstances giving rise to the search. 480 U. S., at 725–726.

The Court approved of the jury’s finding that the City’s initial purpose for the search (assessing the character limit) was reasonable. It also found that the City’s search was not excessive because it sought only the messages of two months, and the City redacted messages sent or received when Sgt. Quon was off-duty. The Court ignored the less intrusive means the City could have used.  This was pivotal to the Ninth Circuit’s opinion, but Justice Kennedy apparently does not want government officials to be burdened with consideration of the less intrusive means to search for what they want. His opinion states directly that the Supreme Court has “repeatedly refused to declare that only the ‘least intrusive’ search practicable can be reasonable under the Fourth Amendment.” The Court said that since Sgt. Quon was a police officer, he should know that his communications would come under "legal scrutiny." I think that as a law enforcement officer, Sgt. Quon would know that the Fourth Amendment requires government to get a search warrant.

Most upsetting to me is the Court’s conclusion that even if the City’s access to the text messages violated the Stored Communications Act, it could still be reasonable.  That is, the Supreme Court says that it is sometimes reasonable to violate the law. Indeed, the Court cites two other cases in which searches that violated some law were still found to be reasonable. Virginia v. Moore, 553 U. S. 164, 168 (2008) (search incident to an arrest that was illegal under state law was reasonable); California v. Greenwood, 486 U. S. 35, 43 (1988) (rejecting argument that if state law forbade police search of individual’s garbage the search would violate the Fourth Amendment).

The Court held that since Quon and his friends argued that the City’s violation of Quon’s rights meant that it also violated the rights of his friends, then those friends gave up their right to argue that their individual rights were violated.  The Court held that the friends gave up their right to argue for their individual privacy rights.  This leaves the door open for the non-employee parties to an e-mail to make their privacy claims directly against the government. After all, someone might respond to an e-mail or text message without realizing that the recipient is using a government computer or device to read them.

In concurring, Justice Stevens noted that the outcome in O’Connor was different because the government there was conducting an investigatory search.  In that case, the employee’s reasonable expectation of privacy drove the analysis.

Justice Scalia also wrote a concurring opinion gloating about how hard it is for the Court to decide cases like this.  If the Court had adopted his proposal in O’Connor (that the Fourth Amendment applies), it would not have to dip its toe into the flowing waters of modern technology. Still, Scalia agrees that the City’s search was reasonable and therefore did not violate the Fourth Amendment.

There were no dissents.