During oral argument today in a closely watched case with potentially, far-reaching implications for private and public employers, the U.S. Supreme Court suggested that its ultimate ruling could be far narrower than anticipated by many. In the case, City of Ontario v. Quon, the Court is reviewing a the Ninth Circuit Court of Appeals’ ruling that the City of Ontario (California) Police Department violated the Fourth Amendment rights of SWAT officer Jeff Quon by reviewing text messages sent and received by Quon using a City-provided pager and messaging service. The Ninth Circuit found that: (a) Quon had a reasonable expectation of privacy in his text messages, and (b) the City violated Quon’s privacy expectation by reviewing his text messages without his knowledge or consent, the two elements of Quon’s Fourth Amendment claim.

While public discussion of the case has revolved principally around the first element of Quon’s claim, i.e., whether Quon reasonably could expect privacy in his text messages, the Supreme Court seemed to focus more heavily on the second element, i.e., whether the City’s review of Quon’s text messages was excessive or unreasonable. During the trial in the case, the jury found that the City’s purpose in searching Quon’s text messages was to determine whether those messages were sent for business or personal reasons. Under persistent questioning from Justices Breyer and Sottomayor, Quon’s counsel struggled to identify a less intrusive means for the City to achieve this indisputably, legitimate purpose than the City’s reading all of Quon’s text messages. The Supreme Court could resolve the case on this initial element of Quon’s claim and not even address whether Quon’s privacy expectation was reasonable.

The Court also appeared skeptical of the Ninth Circuit’s conclusion that Quon reasonably could have expected privacy in his text messages. To reach that conclusion, the Ninth Circuit had relied upon a statement by Lieutenant Duke, the police official responsible for the text messaging program. Duke told Quon that he would not read Quon’s text messages to determine whether they were business-related or personal so long as Quon paid the service provider’s overage charges when Quon exceeded the contractual limit on the number of characters per month. Justices Alito’s and Ginsburg’s questions suggested that they viewed Duke’s statement to be limited to his own actions as opposed to a guarantee of Quon’s privacy against any search by the City. Justices Stevens’ and Kennedy’s questions honed in on the nature of Quon’s SWAT duties, suggesting that Quon could not reasonably expect privacy given that he was on call 24/7 and knew, or should have known, that his text messages might be evidence in criminal proceedings.

Interestingly, Chief Justice Roberts’ questioning suggested that he was somewhat sympathetic to Quon’s contention that he reasonably could expect privacy in his text messages. The Chief Justice noted in his questions that Quon paid the City for his personal text messages, sent at least some of the texts while off-duty, and was told by Duke that he (Duke) would not audit them. The Chief Justice also noted that the Internal Affairs investigators who reviewed the transcripts of Quon’s text messages had redacted the personal ones, suggesting that these investigators considered the personal messages to be private.

In another noteworthy twist, the United States Government, arguing alongside the City, asked the Court to adopt a bright-line rule that employers can defeat the reasonableness of any employee’s expectation of privacy by issuing a policy informing employees that they have no privacy in their communications over employer-provided equipment. The Court did not seem receptive to this position. Justice Sottomayor noted the Court’s well established precedent — O’Connor v. Ortega — holding that “operational realities” of an office are a factor in determining whether an employee had a reasonable expectation of privacy in the workplace and that the employer’s policy is just one factor to consider.

Perhaps most telling of the Court’s likely hesitance to adopt a bright-line rule in either direction were comments by Justice Alito and the Chief Justice. Justice Alito emphasized the newness of the communications technology in the following statement:

[E]lectronic communications are stored all over the place in – and there isn't a history — these are — these are relatively new. There isn't a well-established understanding about what is private and what isn't private. It's a little different from putting garbage out in front of your house, which has happened for along time.

The Chief Justice emphasized the evolving nature of communications technology in response to the federal government’s advocacy of a bright-line rule, stating, “We are dealing with [the Fourth] [A]mendment that looks to whether something is reasonable. And I think it might be the better course to say that the Constitution applies, but we are going to be more flexible in determining what is reasonable because we are dealing with evolving technology.” (emphasis supplied).

A ruling will be issued by the end of the Court's term in June 2010.

This entry was written by Philip L. Gordon.