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Chief's Counsel

Police Department May Read Text Messages Sent on Agency-Issued Pagers: City of Ontario, California, et al. v. Jeff Quon et al.

By Ken Wallentine, Chief of Law Enforcement, Utah Attorney General


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n a unanimous decision, the U.S. Supreme Court held that the Ontario, California, Police Department did not violate Sergeant Jeff Quon’s privacy rights when the department read text messages sent on his department-issued twoway pager.1 The department became aware of Quon’s text messages to his estranged wife and to his girlfriend—a police department employee—when the chief requested an audit of the text message usage to determine whether the department’s character limit was high enough to meet officers’ work communications needs. Quon sent messages that were described by the trial court as “sexually explicit in nature.” The department conducted an internal affairs investigation and disciplined Quon. The wife and the girlfriend also joined the lawsuit as plaintiffs. A jury sided with the defendants. However, the Ninth Circuit Court of Appeals reversed, holding that the search was unreasonable. The Supreme Court overturned the Ninth Circuit Court decision.

The department’s written policy warned officers that use of department e-mail, Internet, and computer resources could be monitored. Even though limited personal use was permitted, the policy also stated that officers should not expect that their electronic communications made through department resources were private or confidential. Quon signed a written acknowledgement of the policy. Quon admitted in signing an acknowledgement of the policy that he was aware that the policy applied to him, but he argued that the policy did not include electronic communication through text messaging. Moreover, he said that he had been told that he could use his pager for personal messages as long as he paid the overlimit charges on the account.

City of Ontario, California, et al. v. Jeff Quon et al. marks the first venture of the Supreme Court into the arena of public employees’ electronic privacy rights in communications through agency resources. The Court was asked to weigh officers’ privacy rights and the right to be free from unreasonable seizures of their communications against the government’s interest in managing the public workplace. The Court coined the guiding principle that the Fourth Amendment “protects people, not places,” in the landmark case of Katz v. United States,2 after FBI agents intercepted phone calls of a bookie. In the electronic age, the tough question is how to apply the Katz principle to electronic communications.

Twenty-three years ago, in O’Connor v. Ortega,3 the Supreme Court considered the search of a public employee’s desk. The Court essentially imposed a reasonableness standard for government workplace searches, holding that a public employer enjoys broad authority to search the physical workplace as long as the employer had a “work-related purpose”4 for the search, and the search is not unduly intrusive. In Quon, the Court now provides some very limited guidance for a public employer’s right to search the cyber-workplace. Because the Court carefully proscribed the effects of its ruling by sticking closely to the facts in Quon, lower courts will continue to wrestle with the parameters of privacy protections in existing and emerging electronic communications devices.

Justice Anthony Kennedy’s opinion for the Court assumes that the officers held a reasonable expectation of privacy in their text messages. However, the Court ultimately avoided this question by proceeding with that assumption. Public employers are free to argue in future cases that a public employee does not have an expectation of privacy in electronic communications facilitated with agency resources. The Electronic Privacy Information Center filed an amicus curiae brief urging the Court to adopt “minimization” principles, similar to the minimization technique used in monitoring court-sanctioned wiretaps.

The Supreme Court easily identified a work-related purpose for reading the text messages. The department “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.”5 The Court noted that the officers held, at best, only “a limited privacy expectation” in the text messages. 6 Justice John Paul Stevens wrote that Quon “should have understood that all of his work-related actions—including all of his communications on his official pager—were likely to be subject to public and legal scrutiny.”7 The Court held that the search was not excessive in scope because the department did not review the content of messages sent after work hours. Thus, the search was reasonable. Notably, the Court held that the auditing method used by the department did not need to be the least intrusive method available to the department.


Quon’s Impact on Departments

Foremost, Quon is an uncomfortable reminder to public employees that privacy rights in the public safety workplace can be limited. Officers must simply assume that electronic communications will leak and they should anticipate the consequences. The Court decision also reminds agencies that they should give advance warning of any monitoring. That gives officers fair notice of the agency expectations. An explicit policy known to all provides legal protection for officers and departments.

Departments should be cautious about a broad reading of the Quon decision. The decision does not create new rules for searches of communications delivered through the constantly evolving technology of smart phones and other wireless devices. The Court explicitly pulled the reins against an application of its holding that strays far from the facts of the case. Justice Kennedy wrote, “The Court must proceed with care when considering the whole concept of privacy expectations in communications made on electronic equipment owned by a government employer.”8 Moreover, agencies and officers should explore whether state privacy laws might create different standards. Some states have statutes that require an employer to notify an employee when electronic communications are being monitored.

The Quon decision signals that smart phones, text messages, social media websites, blogs, photo-sharing websites, and other electronic messaging systems are fair game for battles over who controls privacy rights for communications posted or sent by public employees using government resources. Quon also puts agencies on notice that they must state the agency policy up front, train employees on the policy, and adhere to the policy. Perhaps no better case than the Quon decision can be made for the essential agency need for policy-monitoring capability and the ability to quickly and confidently remain aware of developments in this rapidly evolving area of the law.

An agency without a solid policy, backed by constant monitoring, is asking for trouble when it comes time to enforce or defend a privacy policy. Policy issues such as work-related social media, e-mail, and Internet use must change just as quickly as the technology in use. Agencies that do not enjoy the luxury of skilled legal staff assigned to continually monitor and guide agency policy should carefully consider a contract service that monitors changes in the legal and operational arenas, evaluates those changes, and formulates best-practices policy to help manage the agency’s risk. One thing is certain—Quon is merely the first of many decisions that will shape public employees’ privacy rights in cyberspace.■


Notes:

1City of Ontario, California, et al. v. Jeff Quon et al., 2010 WL 2400087 (U.S. June 17,
2Katz v. United States, 389 U.S. 347, 351 (1967).
3O’Connor v. Ortega, 480 U.S. 709 (1987).
4Id. at 718.
5Ontario, 2010 WL 2400087 (U.S. June 17, 2010), ___.
6Id. 2010 WL 2400087 (U.S. June 17, 2010), ___.
7Id. 2010 WL 2400087 (U.S. June 17, 2010), ___ (Stevens, J., concurring).
8Id. 2010 WL 2400087 (U.S. June 17, 2010), ___.


Please cite as:

Ken Wallentine, "Police Department May Read Text Messages Sent on Agency-Issued Pagers: City of Ontario, California, et al. v. Jeff Quon et al.," The Police Chief 77 (August 2010): 12-13, http://www.nxtbook.com/nxtbooks/naylor/CPIM0810/index.php#/12-13 (insert access date).

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From The Police Chief, vol. LXXVII, no. 8, August 2010. Copyright held by the International Association of Chiefs of Police, 515 North Washington Street, Alexandria, VA 22314 USA.








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