Ontario v. Quon
Encyclopedia
Ontario v. Quon, sometimes cited as City of Ontario v. Quon, 560 U.S. ___ (2010), is a United States Supreme Court case concerning the extent to which the right to privacy applies to electronic communications in a government workplace. It was an appeal by the city of Ontario, California
, from a Ninth Circuit
decision holding that it had violated the Fourth Amendment rights of two of its police officers when it disciplined them following an audit of pager
text messages that discovered many of those messages were personal in nature, some sexually explicit. The Court unanimously held that the audit was work-related and thus did not violate the Fourth Amendment's protections against unreasonable search and seizure.
Ontario police sergeant Jeff Quon, along with other officers and those they were exchanging messages with, had sued the city, their superiors and the pager service provider in federal court. They had alleged a violation of not only their constitutional rights but federal telecommunications privacy laws. Their defense was that a superior officer had promised the pager messages themselves would not be audited if the officers reimbursed the city for fees it incurred when they exceeded a monthly character
limit.
Justice Anthony Kennedy
wrote the majority opinion
signed by seven of his fellow justices. It decided the case purely on the reasonableness of the pager audit, explicitly refusing to consider "far-reaching issues" it raised on the grounds that modern communications technology and its role in society was still evolving. He nevertheless discussed those issues at some length in explaining why the Court chose not to rule on them, in addition to responding, for argument's sake, more directly to issues raised by the respondents. John Paul Stevens
wrote a separate concurring opinion
, as did Antonin Scalia
, who would have used a different test he had proposed in an earlier case to reach the same result.
Outside commentators mostly praised the justices for this display of restraint, but Scalia criticized it harshly in his concurrence, calling it vague. He considered his fellow justices in "disregard of duty" for their refusal to address the Fourth Amendment issues. A month after the court handed it down, an appellate panel in a Georgia case similarly criticized it for "a marked lack of clarity" as it narrowed an earlier ruling to remove a finding that there was no expectation of privacy
in the contents of email. A New York Times
article later noted this criticism, and its "faux unanimity", as emblematic of what judges and lawyers had found an increasingly frustrating trend in opinions of the Roberts Court
.
unit so they could better coordinate their activities. The contract between the department and Arch Wireless, now USA Mobility, was for usage up to a fixed limit of 25,000 character
s per month, above which an overage fee would be charged. Pager use was covered by the OPD's computer and Internet
use policy, under which employees agreed that "the city reserves the right to monitor and log all network activity including e-mail and Internet use, with or without notice." The policy did not specifically mention text messages, but employees were told both verbally, at a staff meeting and through a memorandum
that they were included and that only "light personal communications" were allowed during work hours. It also stated that "inappropriate, derogatory, obscene, suggestive, defamatory, or harassing language in the e-mail system will not be tolerated."
Several officers, including Sgt. Jeff Quon, a 20-year veteran of the department, exceeded the limit during the first two billing cycles. He was allowed to reimburse the city for the fee. Lt. James Duke, head of the department's Administrative Bureau, told him that his communications would not be monitored if he paid the overage, but that he should stop using the pager so much. When Quon and another officer continued to exceed the limit and reimburse the city, Duke told then-Chief Lloyd Scharf he was "tired of being a bill collector". The OPD began to consider whether the character limit it had contracted for was too low and it was forcing officers to pay for work-related communications, as had sometimes happened in the past.
At Scharf's direction, Duke requested from Arch transcripts of text messages sent by Quon and the other officer. After verifying that the city was the subscriber on the account, an Arch employee sent Duke the transcripts. Many messages were personal and some were sexually explicit
, sent by the married Quon to his girlfriend at work. In one month as few as 8% of Quon's texts had been work-related. A transcript from which messages sent when Quon and the other officer were off-duty had been redact
ed was sent to the OPD's internal affairs
sergeant, and after an investigation Quon and the other officer were allegedly disciplined.
. The first was the privacy rights Quon and the other officers had over text messages sent on equipment paid for by their employers. The other was their rights as public employees, since their superiors were also agents of the state.
Congress had passed the Electronic Communications Privacy Act
in 1986, which addressed issues raised as more and more companies stored records with highly personal data about individual consumers in off-site database
s operated by third parties. A key section, known as the Stored Communications Act
(SCA), distinguished between electronic communications services which actively transmitted and received data and remote communications services whose only role was to archive and backup
transmitted data for at least some period of time. The former could release transmitted data only to its sender or recipient; the latter could also release that information to the subscriber regardless of who had sent or received it.
The following year, 1987, the Supreme Court had first dealt with the Fourth Amendment rights of government employees under administrative investigation in O'Connor v. Ortega
, a case arising from the search of a supervising physician's office and records at a California public hospital. By a 5-4 margin the court had ruled that while public employees had Fourth Amendment protections, the search was reasonable and constitutional and that other such warrantless searches of public employees' belongings or workspace, where applicable, were similarly permissible as long as they were reasonably work-related in inception and scope.
The justices in that majority differed on what standards to use for evaluating the reasonableness of a search of a public employees' personal space and belongings. Sandra Day O'Connor
wrote for a four-justice plurality
declaring that government employees did not lose their Fourth Amendment rights at work. In the latter instance, since the working environments of public employees can be drastically different, leading to some where no reasonable expectation of privacy
could be argued to exist, lower courts should consider the "operational realities" of the work environment when determining if a public employee's rights against unreasonable search and seizure were violated. Following the principle laid out in Connick v. Myers
, an earlier decision concerning the constitutional rights of public employees, that "government offices could not function if every employment decision became a constitutional matter", the majority distinguished between searches "merely incident to the primary business of the agency," such as the retrieval of a document or tool from a desk or locker and thus not requiring a warrant at all, from those conducted to investigate a possible violation of workplace rules and procedures.
In a concurring opinion
, Antonin Scalia
rejected the plurality analysis, saying instead that "government searches to retrieve work-related materials or to investigate violations of workplace rules — searches of the sort that are regarded as reasonable and normal in the private employer context — do not violate the Fourth Amendment".
Since Scalia's opinion had provided the case's deciding vote, either it or the plurality could be used by lower courts until another such case were to come to the court and force a resolution of the question. The court would consider the Fourth Amendment rights of public employees again two years later, in 1989's Treasury Employees v. Von Raab. In that case another divided court upheld the Customs Service
's requirement that applicants for positions that involved carrying a firearm and the possibility of drug interdiction undergo drug test
s by urinalysis
.
rehearing; a simultaneous certiorari
petition to the Supreme Court was granted.
A major issue at all levels was whether the department's written Internet policy, or Duke's practice of just collecting the overage fee, was the operating reality of the OPD workplace. If it was the former, Quon had no reasonable expectation of privacy
for his pager messages. The city and department argued that Duke could not set or amend policy so what he said was irrelevant. And even if it was, it did not matter since the pager messages could be disclosed under the California Public Records Act
. The plaintiff
s argued that since Duke was the officer in charge of the contract with Arch, and the policy change that covered the pagers was never communicated in any definitive way, his assurance that he would not read Quon's messages if he reimbursed the city was all that mattered.
For Quon's co-plaintiffs, there was what one commentator later called "the really tricky question in the case," their claim that the city violated their privacy in the course of investigating Quon. Two of the other plaintiffs were OPD employees who had not had pager overuse problems, and the third, his estranged wife, had left the OPD's employment and was using her own pager. The city argued that they should have been aware Quon had no expectation of privacy and that thus their exchanges with him would not be protected, either.
April Florio, had been one of several in her position fired by the department following an investigation into the alleged use of their personal cell phones to tip off the boyfriend of one, a member of a local motorcycle gang suspected of drug trafficking. She contested the dismissal and then successfully sued the city to recover her share of the hearing officer's costs. and another officer, Steve Trujillo, sued the city, the department, the police chief and Arch in Central California U.S. district court
, Eastern Division, in Riverside
.In 2004 Quon and Trujillo were among nine Ontario officers who sued the city over a 1996 incident where they had been covertly videotaped undressing in the locker room as part of an investigation into the theft of a flashlight. The videotape had only come to light the previous year, and the San Bernardino County
district attorney
could not bring charges since the statute of limitations
had expired. Quon, Trujillo and the other officers claimed they had been retaliated against due to their criticism of the tactics the department used. In 2009 the city settled
the suit for $2.75 million.(. Quon, per his page at LinkedIn
, left the OPD in 2005 and later trained police officers in Afghanistan for DynCorp, his present employer. Judge Stephen G. Larson
heard their claims of SCA violation, invasion of privacy
and their constitutional protections against unreasonable search and seizure. Arch was granted summary judgment
in its favor on the SCA claim since it was found to be a remote computing service, not subject to the statute's provisions.
The court ruled that Quon and his fellow plaintiff
s had a reasonable expectation of privacy. It ordered a jury trial
to determine whether the purpose of the audit was, as the department maintained, to find out whether it needed higher character limits or, as Quon claimed, to expose the personal nature of the texts. When the jury found in favor of the OPD, judgment was entered in favor of the defendants.
judges, Kim McLane Wardlaw
and Harry Pregerson
, along with Western Washington
district judge Ronald B. Leighton
. Wardlaw, writing for all three, noted that "[t]he recently minted standard of electronic communication via e-mails, text messages, and other means opens a new frontier in Fourth Amendment jurisprudence that has been little explored". They agreed with the district court that Quon and his co-appellees had a reasonable expectation of privacy due to the assurances from Duke.
But they reversed since they found the search unreasonable as a matter of law. "The OPD surreptitiously reviewed messages that all parties reasonably believed were free from third-party review", Wardlaw wrote. The OPD could have obtained the information it sought in a number of less intrusive ways without viewing the content of the messages, such as warning Quon ahead of time or asking him to redact personal messages from an unreviewed transcript, she observed.
The ruling was applauded by online privacy advocates. The Electronic Frontier Foundation
called it a "tremendous victory ... the Fourth Amendment applies to your communications online just as strongly as it does to your letters and packages". Ars Technica
said it "provide[d] an extensive space for workspace privacy". George Washington University law professor
Orin Kerr
, a Fourth Amendment scolar who was cited in the opinion, called it "a noteworthy holding that I think is correct and very important" at the Volokh Conspiracy
blawg.
It also overturned the summary judgment granted to Arch on the SCA claim, finding the company to be an electronic communications service and thus subject to stricter privacy requirements. The police chief was granted qualified immunity
due to the lack of clearly established law in the area, while the city and department were denied their claim to statutory immunity. The SCA claims were remanded to district court.
The appellees petitioned for an en banc
rehearing and were denied early in 2009. Six justicesCarlos T. Bea, Consuelo Maria Callahan
, Sandra Segal Ikuta
, Andrew J. Kleinfeld, Diarmuid O'Scannlain, Norman Randy Smith, and Richard C. Tallman. on the circuit dissented. Sandra Segal Ikuta
, writing for them, criticized her colleague for two errors. Ikuta insisted the department's policy, and California's Public Records Act
, mooted any discretionary interpretation of the policy that Duke may have conveyed to Quon, thus denying him a reasonable expectation of privacy. She also reminded Wardlaw that the Supreme Court had several timesSpecifically, she cited Skinner v. Railway Labor Executives Association
, Vernonia School District 47J v. Acton
and Board of Education v. Earls
rejected the test on which she read Wardlaw's opinion relying on, that governments must use the least intrusive method of obtaining information available in order to protect employees' Fourth Amendment rights, a rule followed by seven other circuits as well.
Judge Wardlaw wrote a rare concurrence with the order, criticzing the dissent for ignoring the facts of the case. "[N]o poet ever interpreted nature as freely as Judge Ikuta interprets the record on this appeal", she said. As a matter of law, it was the dissenters, not her, who had ignored O'Connor: "By stripping public employees of all rights to privacy regardless of the actual operational realities of each workplace, the dissent would have us create a far broader rule than Supreme Court precedent allows. The majority of our court properly rejected the dissenting judge's efforts to do so."
petition to the Supreme Court, requesting it hear the case. They reiterated many of Ikuta's points, particularly her criticism of the panel's apparent adoption of the rejected least-intrusive-means test, and said it would be an "excellent vehicle" for revisiting O'Connor in light of new technology that complicated the workplace privacy issue. A month later the California State Association of Counties
and League of California Cities filed an amicus curiae
brief in support of the petition making the same arguments, but in particular saying the opinion mischaracterized the operational realities of the case.
In opposition, Quon and the other respondents argued, as Wardlaw's concurrence had, that Ikuta and petitioners had greatly exaggerated the role that the less-intrusive-means test had played in the panel opinion, and that the facts of the case did not present any constitutional issues. In a reply brief, the petitioners noted that other commentators on the case agreed that it had mistakenly applied the less-intrusive-means test.
Late that year, the Supreme Court granted certiorari
to the city, OPD and Chief Scharf, making the case into Ontario v. Quon. Kerr found this "an odd grant", since he had not expected the Supreme Court to find any issues making the case worth hearing. He suspected the justices were responding to a common issue with cases from the Ninth Circuit, where the minority of judges with politically conservative
leanings had reacted vigorously to a perceived excess on the part of the circuit's dominant liberals
. Oral argument
s were scheduled for April, with a decision expected in June.
was expected to favor the city's side, since she had ruled for New York State's right to search an employee's computer in a similar case as a judge on the Second Circuit
.
Electronic privacy advocates agreed with Wardlaw that the case was a "new frontier" for Fourth Amendment jurisprudence, since personal communications technology had advanced considerably since 1987, intertwining personal and work lives much more closely. It was expected that the court's ruling, though it would only directly affect government workplaces, would have an impact on the private workplace as well.
Kerr told The New York Times
that despite the novelty of the issue, he expected the resulting decision to be narrow due to the unusual circumstances from which the case arose. Elsewhere, he said the Court would be better off avoiding the question of whether the department violated the privacy of the people Quon was texting due to the lack of clear precedent for such a ruling with older technologies and the minimal treatment of the issue in the lower-court opinions.
Amici briefs were filed by several interested organizations for both sides. The city was joined by the federal government, represented by the Solicitor General's office, the National League of Cities
and other organizations representing municipal and county governments and school-governance organizations led by the National School Boards Association
. All believed their ability to function effectively as government bodies would be impeded if the Ninth Circuit was upheld. The Los Angeles Times
and other media organizations also urged reversal on the grounds that the public interest was served by as broad a definition of public records as possible, particularly where police operations were concerned.
Weighing in on Quon's side was the AFL-CIO
, on behalf of those members of its constituent labor unions who were public employees. The New York Intellectual Property Law Association (NYIPLA), whose members litigate privacy claims, called on the Court to refrain from setting down any clear rules as technology, and social expectations of privacy related to it, were still evolving. The Electronic Privacy Information Center
's brief, signed by technical experts as well as lawyers, focused on the importance of data minimization to both security and privacy protection. The Electronic Frontier Foundation
(EFF), American Civil Liberties Union
, Center for Democracy and Technology
and Public Citizen
filed a joint brief. The conservative Rutherford Institute
filed a motion requesting leave to file their amicus in favor of respondents since one withheld permission.
s were heard on April 19, 2010. Kent Richland, the city's lawyer, who had previously argued before the justices on behalf of Anna Nicole Smith
in Marshall v. Marshall
, and Deputy Solicitor General Neal Katyal argued for petitioners; Dieter Dammeier, a former police officer himself, argued for Quon and the respondents.
Commentators, looking for signs as to how the Court would rule, felt the justices' questions suggested a narrow focus on the issue of whether the search was reasonable. Chief Justice John Roberts
surprised some with his apparent strong sympathy for Quon's claims. Orin Kerr
noted the many questions asked about how the pagers and other technologies work, and how that lack of familiarity reinforced, in his view, the need for caution, quoting from one of his own papers: "Judges who attempt to use the Fourth Amendment to craft broad regulatory rules covering new technologies run an unusually high risk of crafting rules based on incorrect assumptions of context and technological practice."
asked Richland about a hypothetical scenario in which a sergeant knew that various officers engaged in sexually explicit texting with romantic partners and decided to look at the transcripts out of sheer salacity. "Does that officer have any expectation of privacy that his boss won't just listen in out of prurient interest?" Richland answered that the motive of the examiner should have no impact on a privacy expectation. "[W]hen the filthy-minded police chief listens in, it's a very bad thing, but it's not—it's not offending your right of privacy," concluded Justice Antonin Scalia
.
Justice Ruth Bader Ginsburg
asked how the OPD could have examined the transcripts lawfully if the SCA forbade their release. Richland replied that the statute was complex and highly technical, and cited the Court's 1980 United States v. Payner
to the effect that "a complicated law ... simply cannot be the basis for a reasonable expectation of privacy." He then turned over the rest of his time to Katyal.
During the Deputy Solicitor General's argument, another recent appointee, Justice Samuel Alito
talked about the uncertainties of modern communications technology. "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,An allusion to the Court's holding in California v. Greenwood
that warrantless searches of garbage left out for pickup were not unreasonable and thus constitutional. which has happened for a long time". After Katyal agreed that these things were "in flux" and thus the Court should avoid making any broadly applicable rules on the first hearing, Chief Justice John Roberts
speculated that that principle cut both ways and that perhaps the Court should at least say the Constitution applied in this case and make rules later.
pressed him on why it was unreasonable for the department to review the content of the messages if it wanted to find out if it needed a higher character limit. The lawyer reiterated the jury's finding and said "they didn't need to do that". In response to further questioning from Breyer, he restated the other ways Judge Wardlaw had suggested the department could have obtained the information without reviewing the messages themselves. Justice Sotomayor was skeptical. "You're relying on the very person you're auditing to do the audit for you. That doesn't seem either practical or business-wise."
Justice John Paul Stevens
brought up the issue of public review. His colleague Anthony Kennedy
noted that attorneys challenging probable cause
for a police raid would probably request the pager messages among other things, which Quon would certainly have been aware of, affecting his expectation of privacy. Dammeier responded that any mail he or anyone else sends would certainly be discoverable
in litigation, but that possibility did not materially affect his expectation of privacy over it. He further reminded Scalia that in O'Connor the Court had found a reasonable expectation of privacy over the contents of a public employee's desk. Stevens pointed out that it was more likely that law enforcement communications would be reviewed by third parties than documents in doctors' desks. "I don't think we're taking away the government's ability to do searches under proper circumstances," Dammeier told him.
Dammeier addressed the SCA and Richland's argument that it was too complex to bear on the reasonableness of Quon's expectation of privacy. "It certainly may be not the end-all to the question, but it should be a factor in determining whether or not there’s going to be an expectation of privacy." Scalia said he had not been aware of the statute, and asked if it was reasonable to assume that Quon did. "Petitioners make an argument that because there is this California Public Records Act, that that may diminish one's expectation of privacy", Dammeier said. "Certainly, if we're going to have that, then we should also be having the Stored Communications Act."
The rest of Dammeier's argument was devoted to the issue of the other respondents' privacy expectations in communicating with Quon, after Sotomayor asked him if they could prevail even if Quon did not. Dammeier likened the department's actions to going to the post office to get letters sent to Quon instead of his house. Scalia pointed out that Quon could have obtained hard copies of the messages and circulated them himself. "[W]hen I get a piece of mail from somebody, I could do that as well," the lawyer replied, "but that doesn't mean that the government gets to go to the post office and get my mail before I get it". Richland replied in his rebuttal argument that "the truth is that all of these plaintiffs admitted that they knew that this was a department-issued pager, and this wasn't a post office."
decision in 1928, in which it had permitted warrantless wiretapping on the grounds that the wiretaps did not actually enter the property of the bootlegger
s under investigation, and the Katz v. United States
decision which overruled it four decades later.
In that latter case, he wrote, the Court had the "knowledge and experience" to conclude that there was a reasonable expectation of privacy in a telephone booth. "It is not so clear that courts at present are on so sure a ground." He elaborated on these uncertainties, referring to the amici briefs filed by the EFF and NYIPLA:
For instance, he noted that the ready availability of cell phones made them potentially "necessary instruments for self-expression, even self-identification", strengthening a privacy claim. But at the same time they were affordable enough that anyone wanting one for such a purpose could buy their own rather than use one provided by an employer
"A broad holding concerning employees' privacy expectations vis-à-vis employer-provided technological equipment might have implications for future cases that cannot be predicted," Kennedy wrote. "It is preferable to dispose of this case on narrower grounds." He accepted, for argument's sake, three points: that Quon had a reasonable expectation of privacy in his pager messages, that the review of them constituted a search and that the same principles governing a physical search of a public employee's workspace applied to electronic privacy.
On those grounds, the search had been reasonable under O'Connor. Its inception, to see whether the city needed a higher character limit, was legitimately work-related. Review of the content of the messages was an "efficient and expedient" way of achieving that goal, Kennedy wrote. The OPD's decision to limit the review to just two months' worth of messages, and redact those sent when Quon was off duty further bolstered its case, he noted.
While Quon could have had some expectation of privacy, Kennedy continued, it could not have been enough to prevent a review of the messages. Not only had he been told of the possibility of an audit, but as a police officer "he would or should have known that his actions were likely to come under legal scrutiny, and that this might entail an analysis of his on-the-job communications." And, in particular, since the city had purchased pagers for SWAT team members to improve their performance in that capacity, it was reasonable to expect that the city might audit those pagers to assess the performance of both the units and the pagers in SWAT situations.
Citing the same precedent cases that Ikuta had in her dissent from the rehearing denial, Kennedy said the Ninth Circuit erred in suggesting less intrusive means would have yielded the same information. After quoting from those cases to the effect that the text was not required and that letting judges apply it would make effective investigations almost impossible, he concluded that "[e]ven assuming there were ways that OPD could have performed the search that would have been less intrusive, it does not follow that the search as conducted was unreasonable."
He could not find any legal authority or precedent for the respondents' argument that the SCA violation, which was not before the Court, rendered the search per se unconstitutional. To the contrary, he pointed to the Virginia v. Moore
case decided the previous term, in which evidence from a search conducted after an illegal arrest was ruled admissible since statutory violations did not inherently constitute Fourth Amendment violations. Nor would an SCA violation have rendered the actions of petitioners unconstitutional since they themselves did not violate it. "The otherwise reasonable search by OPD is not rendered unreasonable by the assumption that Arch Wireless violated the SCA by turning over the transcripts."
Lastly, he ruled that the other respondents beside Quon had not suffered a violation of their privacy. The respondents had, Kennedy wrote, simply argued that a violation of Quon's privacy necessarily violated that of those he exchanged messages with, and did not make a case that they could have suffered a violation even if Quon had not. Since the Court had found that Quon's Fourth Amendment rights were not violated, it therefore had to hold that the others' were not, either.
in his dissent, which Stevens had joined. Blackmun had said the justices should adopt neither the plurality's "operational realities" standard nor Scalia's reasonable-in-the-private-sector alternative, but instead consider the circumstances of each particular search. In this case, he reiterated his line of reasoning from oral argument, that Quon's position as a police officer would have seriously limited his expectation of privacy.
Scalia, too, began by addressing O'Connor. The intervening years had not changed his position that the plurality's position in that case was "standardless and unsupported." Nor, a footnote responding to Stevens added, was the approach of that case's dissent relevant unless it was overruled at some point. Applying the test from his concurrence in that case to the instant case, he wrote, "the proper threshold inquiry should be not whether the Fourth Amendment applies to messages on public employees' employer-issued pagers, but whether it applies in general to such messages on employer-issued pagers." But it was unnecessary to answer that question since he agreed with the majority that the search had been reasonable.
Since, he felt, that was all the Court needed to say, the majority's "excursus on the complexity and consequences of answering ... that admittedly irrelevant threshold question" was similarly a waste of effort. "To whom do we owe an additional explanation for declining to decide an issue, once we have explained that it makes no difference?" He then excoriated the majority's "exaggerated" case for restraint:
It was "a heavy-handed hint" to lower courts and future litigants that was likely to encourage even more such suits in the future. "In short, in saying why it is not saying more, the Court says much more than it should."
Lastly, he found it ironic that the Court had relied on the plurality standard in O'Connor, since its discussion would make it even harder to assess what the operating realities of the workplace were. "Any rule that requires evaluating whether a given gadget is a 'necessary instrumen[t] for self-expression, even self-identification,' on top of assessing the degree to which 'the law's treatment of [workplace norms has] evolve[d],' ... is (to put it mildly) unlikely to yield objective answers."
praised the majority's restraint. "Holding off from making broad pronouncements in the midst of a rapidly changing technology environment is a wise display of restraint by the court," agreed The Washington Post
three weeks later. The EFF likewise praised the limited scope of the decision and found "hopeful hints" in Kennedy's explanation of the cautious approach suggesting that the Court would "cautiously make such decisions based on society's privacy expectations and its level of reliance on new communications technologies." It called on Congress to pass proposed legislation that addressed these issues.
EPIC president Marc Rotenberg
was dismayed by the Court's caution. "[T]he court could have done what it has done in the past and updated constitutional safeguards in light of new technology", as it did in Katz, he said in a letter responding to the Times editorial. That case had influenced privacy law internationally, and "the court's reluctance to assess these privacy issues also means that it will have less influence on other high courts that address similar questions."
judge Frank M. Hull
in a case reheard to take Quon into account. In March 2010, she had written for a panel deciding Rehberg v. Paulk, a case in which a Georgia man had sued the Dougherty County
district attorney
alleging malicious prosecution
for an investigation into harassing faxes sent to a local hospital. Rehberg had also claimed his privacy was violated by his Internet Service Provider
's (ISP) release of his emails from its server
in response to a subpoena
.
No appeals court had yet been called upon to decide
whether users had a reasonable expectation of privacy over the content of email. Hull's opinion extrapolated from older precedents on postal and telephone communications, along with more recent cases from district courts and a Tenth Circuit
ruling on email addresses, to assert that there was no reasonable expectation of privacy over email content once it reached a third party's server, since it was transmitted from there to other servers and copied and archived along the way. There was at the time no settled law on the subject, and privacy advocates expressed concern and criticized the decision. After Quon, the panel granted rehearing.
The new decision, handed down a month after Quon, followed it in declining to establish a precedent. "The Supreme Court's more-recent precedent shows a marked lack of clarity in what privacy expectations as to content of electronic communications are
reasonable ... Given the lack of precedent, we now question whether it would be prudent in this case and on this
limited factual record to establish broad precedent as to the reasonable privacy
expectation in email content." The panel thus limited its decision to finding for the appellees on qualified immunity
grounds.
The criticism from within and without led to an article by New York Times
Supreme Court reporter Adam Liptak
finding Quon emblematic of two trends observers found increasingly problematic in Roberts Court
opinions: vagueness, and apparent unanimity undermined by multiple concurring opinions. It had been among the record 77% of unanimous decisions from the term with at least one concurrence; as for the former issue, he characterized Hull's description of Quon as calling it "almost aggressively unhelpful to lawyers and judges".
article was critical of the decision, concurring with Scalia and Hull that it provided "no helpful guidance" to lower courts in resolving similar cases. "[I]ts reluctance to devise an intelligible principle for Fourth Amendment rights regarding technology will have the negative effect of causing lower courts to rely on O'Connor to an even greater extent, [allowing] judges ... to reach whatever conclusion they want. The Court should have ruled that public employees do not enjoy a reasonable expectation of privacy when sending text messages from government-issued devices."
The article noted the irony of Kennedy's musings about the difficulty of crafting privacy standards with technology evolving at a rapid pace when applied to a case that turned on text messages sent on "two-way pager devices that were issued to employees a decade ago and that would likely be deemed antiquated by today's teenagers and young professionals", who largely tend to use cell phones for texting. "Presumably, societal norms with respect to pagers are as developed as they will ever be." Nor could it see work-related employer-issued pagers or other devices being used for self-expressive purposes as Kennedy suggested, since they were functionally no different from any other such item a police department might issue to officers, "much like a police officer's patrol cruiser or sidearm". It did concede that the conflict between the department's written policy and Lt. Duke's verbal assurances to Quon made the issue more complex in this particular case.
The Court's apparent suggestion that "any technology can be seen as emerging", the Review suggested, would not only lead to muddled future jurisprudence, but was in contrast to various lower courts' more successful efforts to do so.Specifically, it cited Biby v. Board of Regents (419 F.3d 845 (8th Cir
. 2005), in which a public university's written policy was held to foreclose any expectation of privacy on employee's computers, and United States v. Simons(29 F.Supp. 2d 324 (E.D. Va.
1998), where it was held that actual office policies and procedures may reduce a public employee's privacy expectations over their desks, files and computers. "While it may be true that technological advances and the increased availability of advanced mobile handsets to individual consumers have blurred the line between private life and the workplace," the article concluded, "it does not necessarily follow that a user has a reasonable expectation of privacy on workplace equipment provided by the employer." As Kennedy had also noted, the proliferation of personal communications devices could make workers more respectful of those distinctions than less. The Review cited as an example the use of webmail services from work computers by many people.
Another commentator took it upon herself to address the issues the Court left unresolved, even before it had heard oral arguments. "Because this holding is so limited, it practically begs for a new case to address the issue more broadly", wrote Amanda Higgins of the Ninth Circuit's opinions, in the Oklahoma Journal of Law and Technology. She agreed with Ikuta's criticism of the panel decision, but argued that the panel should have devoted more attention to the larger issues of Quon's expectation of privacy. "To focus the analysis elsewhere is less than helpful in this already murky area of law."
The jury's finding that the audit was legitimately work-related and not an investigation of misconduct may ultimately have hurt the city, Higgins wrote, since it focused attention on whether it was necessary to read the messages. Had it been found to be investigatory, there would have been more grounds to rule the audit a reasonable search. Other public employers facing similar litigation "will want to get on the court record that their search was for some purpose that will not only pass as reasonable at its inception under the facts of the case ... and will also allow the court to find that the actual method was not excessive in relation to the purpose." They would be best served, she concluded, by making clear, explicit policies on personal use of communications devices and rigorously enforcing those policies. Informal policies in partial or complete conflict with formal ones had created problems for employers in other areas of the law, and it was better to prevent such lawsuits from arising altogether.
Ontario, California
Ontario is a city located in San Bernardino County, California, United States, 35 miles east of downtown Los Angeles. Located in the western part of the Inland Empire region, it lies just east of the Los Angeles county line and is part of the Greater Los Angeles Area...
, from a Ninth Circuit
United States Court of Appeals for the Ninth Circuit
The United States Court of Appeals for the Ninth Circuit is a U.S. federal court with appellate jurisdiction over the district courts in the following districts:* District of Alaska* District of Arizona...
decision holding that it had violated the Fourth Amendment rights of two of its police officers when it disciplined them following an audit of pager
Pager
A pager is a simple personal telecommunications device for short messages. A one-way numeric pager can only receive a message consisting of a few digits, typically a phone number that the user is then requested to call...
text messages that discovered many of those messages were personal in nature, some sexually explicit. The Court unanimously held that the audit was work-related and thus did not violate the Fourth Amendment's protections against unreasonable search and seizure.
Ontario police sergeant Jeff Quon, along with other officers and those they were exchanging messages with, had sued the city, their superiors and the pager service provider in federal court. They had alleged a violation of not only their constitutional rights but federal telecommunications privacy laws. Their defense was that a superior officer had promised the pager messages themselves would not be audited if the officers reimbursed the city for fees it incurred when they exceeded a monthly character
Character (computing)
In computer and machine-based telecommunications terminology, a character is a unit of information that roughly corresponds to a grapheme, grapheme-like unit, or symbol, such as in an alphabet or syllabary in the written form of a natural language....
limit.
Justice Anthony Kennedy
Anthony Kennedy
Anthony McLeod Kennedy is an Associate Justice of the United States Supreme Court, having been appointed by President Ronald Reagan in 1988. Since the retirement of Sandra Day O'Connor, Kennedy has often been the swing vote on many of the Court's politically charged 5–4 decisions...
wrote the majority opinion
Majority opinion
In law, a majority opinion is a judicial opinion agreed to by more than half of the members of a court. A majority opinion sets forth the decision of the court and an explanation of the rationale behind the court's decision....
signed by seven of his fellow justices. It decided the case purely on the reasonableness of the pager audit, explicitly refusing to consider "far-reaching issues" it raised on the grounds that modern communications technology and its role in society was still evolving. He nevertheless discussed those issues at some length in explaining why the Court chose not to rule on them, in addition to responding, for argument's sake, more directly to issues raised by the respondents. John Paul Stevens
John Paul Stevens
John Paul Stevens served as an Associate Justice of the Supreme Court of the United States from December 19, 1975 until his retirement on June 29, 2010. At the time of his retirement, he was the oldest member of the Court and the third-longest serving justice in the Court's history...
wrote a separate concurring opinion
Concurring opinion
In law, a concurring opinion is a written opinion by one or more judges of a court which agrees with the decision made by the majority of the court, but states different reasons as the basis for his or her decision...
, as did Antonin Scalia
Antonin Scalia
Antonin Gregory Scalia is an American jurist who serves as an Associate Justice of the Supreme Court of the United States. As the longest-serving justice on the Court, Scalia is the Senior Associate Justice...
, who would have used a different test he had proposed in an earlier case to reach the same result.
Outside commentators mostly praised the justices for this display of restraint, but Scalia criticized it harshly in his concurrence, calling it vague. He considered his fellow justices in "disregard of duty" for their refusal to address the Fourth Amendment issues. A month after the court handed it down, an appellate panel in a Georgia case similarly criticized it for "a marked lack of clarity" as it narrowed an earlier ruling to remove a finding that there was no expectation of privacy
Expectation of privacy
In United States constitutional law the expectation of privacy is a legal test which is crucial in defining the scope of the applicability of the privacy protections of the Fourth Amendment to the United States Constitution...
in the contents of email. A New York Times
The New York Times
The New York Times is an American daily newspaper founded and continuously published in New York City since 1851. The New York Times has won 106 Pulitzer Prizes, the most of any news organization...
article later noted this criticism, and its "faux unanimity", as emblematic of what judges and lawyers had found an increasingly frustrating trend in opinions of the Roberts Court
Roberts Court
In the United States, the Roberts Court refers to the Supreme Court of the United States since 2005, under the leadership of Chief Justice John G. Roberts...
.
Underlying dispute
In 2001 the Ontario Police Department (OPD) acquired 20 alphanumeric pagers to distribute to officers in its SWATSWAT
A SWAT team is an elite tactical unit in various national law enforcement departments. They are trained to perform high-risk operations that fall outside of the abilities of regular officers...
unit so they could better coordinate their activities. The contract between the department and Arch Wireless, now USA Mobility, was for usage up to a fixed limit of 25,000 character
Character (computing)
In computer and machine-based telecommunications terminology, a character is a unit of information that roughly corresponds to a grapheme, grapheme-like unit, or symbol, such as in an alphabet or syllabary in the written form of a natural language....
s per month, above which an overage fee would be charged. Pager use was covered by the OPD's computer and Internet
Internet
The Internet is a global system of interconnected computer networks that use the standard Internet protocol suite to serve billions of users worldwide...
use policy, under which employees agreed that "the city reserves the right to monitor and log all network activity including e-mail and Internet use, with or without notice." The policy did not specifically mention text messages, but employees were told both verbally, at a staff meeting and through a memorandum
Memorandum
A memorandum is from the Latin verbal phrase memorandum est, the gerundive form of the verb memoro, "to mention, call to mind, recount, relate", which means "It must be remembered ..."...
that they were included and that only "light personal communications" were allowed during work hours. It also stated that "inappropriate, derogatory, obscene, suggestive, defamatory, or harassing language in the e-mail system will not be tolerated."
Several officers, including Sgt. Jeff Quon, a 20-year veteran of the department, exceeded the limit during the first two billing cycles. He was allowed to reimburse the city for the fee. Lt. James Duke, head of the department's Administrative Bureau, told him that his communications would not be monitored if he paid the overage, but that he should stop using the pager so much. When Quon and another officer continued to exceed the limit and reimburse the city, Duke told then-Chief Lloyd Scharf he was "tired of being a bill collector". The OPD began to consider whether the character limit it had contracted for was too low and it was forcing officers to pay for work-related communications, as had sometimes happened in the past.
At Scharf's direction, Duke requested from Arch transcripts of text messages sent by Quon and the other officer. After verifying that the city was the subscriber on the account, an Arch employee sent Duke the transcripts. Many messages were personal and some were sexually explicit
Sexting
Sexting is the act of sending sexually explicit messages or photographs, primarily between mobile phones. The term was first popularized in early 21st century, and is a portmanteau of sex and texting, where the latter is meant in the wide sense of sending a text possibly with...
, sent by the married Quon to his girlfriend at work. In one month as few as 8% of Quon's texts had been work-related. A transcript from which messages sent when Quon and the other officer were off-duty had been redact
Sanitization (classified information)
Sanitization is the process of removing sensitive information from a document or other medium, so that it may be distributed to a broader audience. When dealing with classified information, sanitization attempts to reduce the document's classification level, possibly yielding an unclassified...
ed was sent to the OPD's internal affairs
Internal affairs (law enforcement)
The internal affairs division of a law enforcement agency investigates incidents and plausible suspicions of lawbreaking and professional misconduct attributed to officers on the force...
sergeant, and after an investigation Quon and the other officer were allegedly disciplined.
Existing law
The case would involve two areas of law, both coming under the Fourth AmendmentFourth Amendment to the United States Constitution
The Fourth Amendment to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause...
. The first was the privacy rights Quon and the other officers had over text messages sent on equipment paid for by their employers. The other was their rights as public employees, since their superiors were also agents of the state.
Congress had passed the Electronic Communications Privacy Act
Electronic Communications Privacy Act
The Electronic Communications Privacy Act is a United States law.- Overview :The “electronic communication” means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or...
in 1986, which addressed issues raised as more and more companies stored records with highly personal data about individual consumers in off-site database
Database
A database is an organized collection of data for one or more purposes, usually in digital form. The data are typically organized to model relevant aspects of reality , in a way that supports processes requiring this information...
s operated by third parties. A key section, known as the Stored Communications Act
Stored Communications Act
The Stored Communications Act is a law that was enacted by the United States Congress in 1986. It is not a stand-alone law but forms part of the Electronic Communications Privacy Act; it is codified as 18 U.S.C. §§ 2701 to 2712...
(SCA), distinguished between electronic communications services which actively transmitted and received data and remote communications services whose only role was to archive and backup
Backup
In information technology, a backup or the process of backing up is making copies of data which may be used to restore the original after a data loss event. The verb form is back up in two words, whereas the noun is backup....
transmitted data for at least some period of time. The former could release transmitted data only to its sender or recipient; the latter could also release that information to the subscriber regardless of who had sent or received it.
The following year, 1987, the Supreme Court had first dealt with the Fourth Amendment rights of government employees under administrative investigation in O'Connor v. Ortega
O'Connor v. Ortega
O'Connor v. Ortega, , is a United States Supreme Court decision on the Fourth Amendment rights of government employees with regard to administrative searches in the workplace, during investigations by supervisors for violations of employee policy rather than by law enforcement for criminal offenses...
, a case arising from the search of a supervising physician's office and records at a California public hospital. By a 5-4 margin the court had ruled that while public employees had Fourth Amendment protections, the search was reasonable and constitutional and that other such warrantless searches of public employees' belongings or workspace, where applicable, were similarly permissible as long as they were reasonably work-related in inception and scope.
The justices in that majority differed on what standards to use for evaluating the reasonableness of a search of a public employees' personal space and belongings. Sandra Day O'Connor
Sandra Day O'Connor
Sandra Day O'Connor is an American jurist who was the first female member of the Supreme Court of the United States. She served as an Associate Justice from 1981 until her retirement from the Court in 2006. O'Connor was appointed by President Ronald Reagan in 1981...
wrote for a four-justice plurality
Plurality opinion
A plurality opinion is the opinion from a group of justices, often in an appellate court, in which no single opinion received the support of a majority of the court. The plurality opinion did not receive the support of more than half the justices, but received more support than any other...
declaring that government employees did not lose their Fourth Amendment rights at work. In the latter instance, since the working environments of public employees can be drastically different, leading to some where no reasonable expectation of privacy
Expectation of privacy
In United States constitutional law the expectation of privacy is a legal test which is crucial in defining the scope of the applicability of the privacy protections of the Fourth Amendment to the United States Constitution...
could be argued to exist, lower courts should consider the "operational realities" of the work environment when determining if a public employee's rights against unreasonable search and seizure were violated. Following the principle laid out in Connick v. Myers
Connick v. Myers
Connick v. Myers, , is a United States Supreme Court decision concerning the First Amendment rights of public employees who speak on matters of possible public concern within the workplace context. It was first brought by Sheila Myers, an Orleans Parish, Louisiana, assistant district attorney...
, an earlier decision concerning the constitutional rights of public employees, that "government offices could not function if every employment decision became a constitutional matter", the majority distinguished between searches "merely incident to the primary business of the agency," such as the retrieval of a document or tool from a desk or locker and thus not requiring a warrant at all, from those conducted to investigate a possible violation of workplace rules and procedures.
In a concurring opinion
Concurring opinion
In law, a concurring opinion is a written opinion by one or more judges of a court which agrees with the decision made by the majority of the court, but states different reasons as the basis for his or her decision...
, Antonin Scalia
Antonin Scalia
Antonin Gregory Scalia is an American jurist who serves as an Associate Justice of the Supreme Court of the United States. As the longest-serving justice on the Court, Scalia is the Senior Associate Justice...
rejected the plurality analysis, saying instead that "government searches to retrieve work-related materials or to investigate violations of workplace rules — searches of the sort that are regarded as reasonable and normal in the private employer context — do not violate the Fourth Amendment".
Since Scalia's opinion had provided the case's deciding vote, either it or the plurality could be used by lower courts until another such case were to come to the court and force a resolution of the question. The court would consider the Fourth Amendment rights of public employees again two years later, in 1989's Treasury Employees v. Von Raab. In that case another divided court upheld the Customs Service
United States Customs Service
Until March 2003, the United States Customs Service was an agency of the U.S. federal government that collected import tariffs and performed other selected border security duties.Before it was rolled into form part of the U.S...
's requirement that applicants for positions that involved carrying a firearm and the possibility of drug interdiction undergo drug test
Drug test
A drug test is a technical analysis of a biological specimen – for example urine, hair, blood, sweat, or oral fluid / saliva – to determine the presence or absence of specified parent drugs or their metabolites...
s by urinalysis
Urinalysis
A urinalysis , also known as Routine and Microscopy , is an array of tests performed on urine, and one of the most common methods of medical diagnosis...
.
Litigation
The case began in federal court. After a district court found in favor of the defendants, a three-judge appellate panel reversed the decision. The circuit court denied a petition for an en bancEn banc
En banc, in banc, in banco or in bank is a French term used to refer to the hearing of a legal case where all judges of a court will hear the case , rather than a panel of them. It is often used for unusually complex cases or cases considered to be of greater importance...
rehearing; a simultaneous certiorari
Certiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...
petition to the Supreme Court was granted.
A major issue at all levels was whether the department's written Internet policy, or Duke's practice of just collecting the overage fee, was the operating reality of the OPD workplace. If it was the former, Quon had no reasonable expectation of privacy
Expectation of privacy
In United States constitutional law the expectation of privacy is a legal test which is crucial in defining the scope of the applicability of the privacy protections of the Fourth Amendment to the United States Constitution...
for his pager messages. The city and department argued that Duke could not set or amend policy so what he said was irrelevant. And even if it was, it did not matter since the pager messages could be disclosed under the California Public Records Act
California Public Records Act
The California Public Records Act was a law passed by the California State Legislature and signed by the Governor in 1968 requiring inpection and/or disclosure of governmental records to the public upon request, unless exempted by law.The law is similar to the Freedom of Information Act,...
. The plaintiff
Plaintiff
A plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit before a court...
s argued that since Duke was the officer in charge of the contract with Arch, and the policy change that covered the pagers was never communicated in any definitive way, his assurance that he would not read Quon's messages if he reimbursed the city was all that mattered.
For Quon's co-plaintiffs, there was what one commentator later called "the really tricky question in the case," their claim that the city violated their privacy in the course of investigating Quon. Two of the other plaintiffs were OPD employees who had not had pager overuse problems, and the third, his estranged wife, had left the OPD's employment and was using her own pager. The city argued that they should have been aware Quon had no expectation of privacy and that thus their exchanges with him would not be protected, either.
Trial
In 2003 Quon, his ex-wife, girlfriendThe girlfriend, dispatcherDispatcher
Dispatchers are communications personnel responsible for receiving and transmitting pure and reliable messages, tracking vehicles and equipment, and recording other important information...
April Florio, had been one of several in her position fired by the department following an investigation into the alleged use of their personal cell phones to tip off the boyfriend of one, a member of a local motorcycle gang suspected of drug trafficking. She contested the dismissal and then successfully sued the city to recover her share of the hearing officer's costs. and another officer, Steve Trujillo, sued the city, the department, the police chief and Arch in Central California U.S. district court
United States District Court for the Central District of California
The United States District Court for the Central District of California serves over 18 million people in southern and central California, making it the largest federal judicial district by population...
, Eastern Division, in Riverside
Riverside, California
Riverside is a city in Riverside County, California, United States, and the county seat of the eponymous county. Named for its location beside the Santa Ana River, it is the largest city in the Riverside-San Bernardino-Ontario metropolitan area of Southern California, 4th largest inland California...
.In 2004 Quon and Trujillo were among nine Ontario officers who sued the city over a 1996 incident where they had been covertly videotaped undressing in the locker room as part of an investigation into the theft of a flashlight. The videotape had only come to light the previous year, and the San Bernardino County
San Bernardino County, California
San Bernardino County is a county in the U.S. state of California. As of the 2010 census, the population was 2,035,210, up from 1,709,434 as of the 2000 census...
district attorney
District attorney
In many jurisdictions in the United States, a District Attorney is an elected or appointed government official who represents the government in the prosecution of criminal offenses. The district attorney is the highest officeholder in the jurisdiction's legal department and supervises a staff of...
could not bring charges since the statute of limitations
Statute of limitations
A statute of limitations is an enactment in a common law legal system that sets the maximum time after an event that legal proceedings based on that event may be initiated...
had expired. Quon, Trujillo and the other officers claimed they had been retaliated against due to their criticism of the tactics the department used. In 2009 the city settled
Settlement (law)
In law, a settlement is a resolution between disputing parties about a legal case, reached either before or after court action begins. The term "settlement" also has other meanings in the context of law.-Basis:...
the suit for $2.75 million.(. Quon, per his page at LinkedIn
LinkedIn
LinkedIn is a business-related social networking site. Founded in December 2002 and launched in May 2003, it is mainly used for professional networking. , LinkedIn reports more than 120 million registered users in more than 200 countries and territories. The site is available in English, French,...
, left the OPD in 2005 and later trained police officers in Afghanistan for DynCorp, his present employer. Judge Stephen G. Larson
Stephen G. Larson
Stephen Gerard Larson is a former United States District Court judge.Larson was born in Fontana, California. He received a B.S. from Georgetown University in 1986. He received a J.D. from the University of Southern California Law School and was admitted to the California State Bar in 1989. He was...
heard their claims of SCA violation, invasion of privacy
Invasion of privacy
United States privacy law embodies several different legal concepts. One is the invasion of privacy, a tort based in common law allowing an aggrieved party to bring a lawsuit against an individual who unlawfully intrudes into his or her private affairs, discloses his or her private information,...
and their constitutional protections against unreasonable search and seizure. Arch was granted summary judgment
Summary judgment
In law, a summary judgment is a determination made by a court without a full trial. Such a judgment may be issued as to the merits of an entire case, or of specific issues in that case....
in its favor on the SCA claim since it was found to be a remote computing service, not subject to the statute's provisions.
The court ruled that Quon and his fellow plaintiff
Plaintiff
A plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit before a court...
s had a reasonable expectation of privacy. It ordered a jury trial
Jury trial
A jury trial is a legal proceeding in which a jury either makes a decision or makes findings of fact which are then applied by a judge...
to determine whether the purpose of the audit was, as the department maintained, to find out whether it needed higher character limits or, as Quon claimed, to expose the personal nature of the texts. When the jury found in favor of the OPD, judgment was entered in favor of the defendants.
Appeal
On appeal in 2008, a panel of two Ninth CircuitUnited States Court of Appeals for the Ninth Circuit
The United States Court of Appeals for the Ninth Circuit is a U.S. federal court with appellate jurisdiction over the district courts in the following districts:* District of Alaska* District of Arizona...
judges, Kim McLane Wardlaw
Kim McLane Wardlaw
Kim McLane Wardlaw is a federal judge on the United States Court of Appeals for the Ninth Circuit, with chambers in Pasadena, California.-Education and legal training:...
and Harry Pregerson
Harry Pregerson
Harry Pregerson serves as a judge on the United States Court of Appeals for the Ninth Circuit. He was appointed to the Ninth Circuit in 1979 by President Jimmy Carter...
, along with Western Washington
United States District Court for the Western District of Washington
The United States District Court for the Western District of Washington is the Federal district court whose jurisdiction comprises the following counties of the state of Washington: Clallam, Clark, Cowlitz, Grays Harbor, Island, Jefferson, King, Kitsap, Lewis, Mason, Pacific, Pierce, San Juan,...
district judge Ronald B. Leighton
Ronald B. Leighton
Ronald Bruce Leighton is a United States federal judge.Born in Stockton, California, Leighton received a B.A. from Whitworth College in 1973 and a J.D. from the University of California, Hastings College of Law in 1976. He was in private practice in Tacoma, Washington from 1976 to 2002.On January...
. Wardlaw, writing for all three, noted that "[t]he recently minted standard of electronic communication via e-mails, text messages, and other means opens a new frontier in Fourth Amendment jurisprudence that has been little explored". They agreed with the district court that Quon and his co-appellees had a reasonable expectation of privacy due to the assurances from Duke.
But they reversed since they found the search unreasonable as a matter of law. "The OPD surreptitiously reviewed messages that all parties reasonably believed were free from third-party review", Wardlaw wrote. The OPD could have obtained the information it sought in a number of less intrusive ways without viewing the content of the messages, such as warning Quon ahead of time or asking him to redact personal messages from an unreviewed transcript, she observed.
The ruling was applauded by online privacy advocates. The Electronic Frontier Foundation
Electronic Frontier Foundation
The Electronic Frontier Foundation is an international non-profit digital rights advocacy and legal organization based in the United States...
called it a "tremendous victory ... the Fourth Amendment applies to your communications online just as strongly as it does to your letters and packages". Ars Technica
Ars Technica
Ars Technica is a technology news and information website created by Ken Fisher and Jon Stokes in 1998. It publishes news, reviews and guides on issues such as computer hardware and software, science, technology policy, and video games. Ars Technica is known for its features, long articles that go...
said it "provide[d] an extensive space for workspace privacy". George Washington University law professor
The George Washington University Law School
The George Washington University Law School, commonly referred to as GW Law, is the law school of The George Washington University. It was founded in 1825 and is the oldest law school in Washington, D.C. The school is accredited by the American Bar Association and is a charter member of the...
Orin Kerr
Orin Kerr
Orin S. Kerr is a professor of law at the George Washington University Law School, legal representation for the MySpace "cyber bullying" pioneer Lori Drew and a leading scholar in the subjects of computer crime law and internet surveillance. In the fall of 2006, he visited as an associate professor...
, a Fourth Amendment scolar who was cited in the opinion, called it "a noteworthy holding that I think is correct and very important" at the Volokh Conspiracy
The Volokh Conspiracy
The Volokh Conspiracy is a blog which mostly covers United States legal and political issues, generally from a libertarian or conservative perspective. One of the most widely read legal blogs in the United States, The Volokh Conspiracy has more than one million page views each month. This group...
blawg.
It also overturned the summary judgment granted to Arch on the SCA claim, finding the company to be an electronic communications service and thus subject to stricter privacy requirements. The police chief was granted qualified immunity
Qualified immunity
Qualified immunity is a doctrine in U.S. federal law that arises in cases brought against state officials under 42 U.S.C Section 1983 and against federal officials under Bivens v. Six Unknown Named Agents, 403 U.S. 388 . Qualified immunity shields government officials from liability for the...
due to the lack of clearly established law in the area, while the city and department were denied their claim to statutory immunity. The SCA claims were remanded to district court.
En banc
En banc, in banc, in banco or in bank is a French term used to refer to the hearing of a legal case where all judges of a court will hear the case , rather than a panel of them. It is often used for unusually complex cases or cases considered to be of greater importance...
rehearing and were denied early in 2009. Six justicesCarlos T. Bea, Consuelo Maria Callahan
Consuelo María Callahan
Consuelo María Callahan is a federal judge on the United States Court of Appeals for the Ninth Circuit.-Background:...
, Sandra Segal Ikuta
Sandra Segal Ikuta
Sandra Segal Ikuta is a federal judge on the United States Court of Appeals for the Ninth Circuit.- Background :Ikuta received a master's in journalism from Columbia University in 1978. She had previously attended Stanford University for two years before moving to University of California,...
, Andrew J. Kleinfeld, Diarmuid O'Scannlain, Norman Randy Smith, and Richard C. Tallman. on the circuit dissented. Sandra Segal Ikuta
Sandra Segal Ikuta
Sandra Segal Ikuta is a federal judge on the United States Court of Appeals for the Ninth Circuit.- Background :Ikuta received a master's in journalism from Columbia University in 1978. She had previously attended Stanford University for two years before moving to University of California,...
, writing for them, criticized her colleague for two errors. Ikuta insisted the department's policy, and California's Public Records Act
California Public Records Act
The California Public Records Act was a law passed by the California State Legislature and signed by the Governor in 1968 requiring inpection and/or disclosure of governmental records to the public upon request, unless exempted by law.The law is similar to the Freedom of Information Act,...
, mooted any discretionary interpretation of the policy that Duke may have conveyed to Quon, thus denying him a reasonable expectation of privacy. She also reminded Wardlaw that the Supreme Court had several timesSpecifically, she cited Skinner v. Railway Labor Executives Association
Skinner v. Railway Labor Executives Association
Skinner v. Railway Labor Executives Association, 489 U.S. 602 , was the U.S. Supreme Court case that paved the way for random drug testing of public employees in "safety sensitive" positions....
, Vernonia School District 47J v. Acton
Vernonia School District 47J v. Acton
Vernonia School District 47J v. Acton, was a U.S. Supreme Court decision which upheld the constitutionality of random drug testing regimen implemented by the local public schools in Vernonia, Oregon. Under that regimen, student athletes were required to submit to random drug testing before being...
and Board of Education v. Earls
Board of Education v. Earls
Board of Education v. Earls, , was a decision of the Supreme Court of the United States that upheld the constitutionality of mandatory drug testing by public schools of students participating in extracurricular activities...
rejected the test on which she read Wardlaw's opinion relying on, that governments must use the least intrusive method of obtaining information available in order to protect employees' Fourth Amendment rights, a rule followed by seven other circuits as well.
Judge Wardlaw wrote a rare concurrence with the order, criticzing the dissent for ignoring the facts of the case. "[N]o poet ever interpreted nature as freely as Judge Ikuta interprets the record on this appeal", she said. As a matter of law, it was the dissenters, not her, who had ignored O'Connor: "By stripping public employees of all rights to privacy regardless of the actual operational realities of each workplace, the dissent would have us create a far broader rule than Supreme Court precedent allows. The majority of our court properly rejected the dissenting judge's efforts to do so."
Certiorari petition
Concurrent with the en banc petition, the appellees filed a certiorariCertiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...
petition to the Supreme Court, requesting it hear the case. They reiterated many of Ikuta's points, particularly her criticism of the panel's apparent adoption of the rejected least-intrusive-means test, and said it would be an "excellent vehicle" for revisiting O'Connor in light of new technology that complicated the workplace privacy issue. A month later the California State Association of Counties
California State Association of Counties
The California State Association of Counties is a lobbying, advocacy and service organization representing the state's 58 counties at the state and federal level...
and League of California Cities filed an amicus curiae
Amicus curiae
An amicus curiae is someone, not a party to a case, who volunteers to offer information to assist a court in deciding a matter before it...
brief in support of the petition making the same arguments, but in particular saying the opinion mischaracterized the operational realities of the case.
In opposition, Quon and the other respondents argued, as Wardlaw's concurrence had, that Ikuta and petitioners had greatly exaggerated the role that the less-intrusive-means test had played in the panel opinion, and that the facts of the case did not present any constitutional issues. In a reply brief, the petitioners noted that other commentators on the case agreed that it had mistakenly applied the less-intrusive-means test.
Late that year, the Supreme Court granted certiorari
Certiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...
to the city, OPD and Chief Scharf, making the case into Ontario v. Quon. Kerr found this "an odd grant", since he had not expected the Supreme Court to find any issues making the case worth hearing. He suspected the justices were responding to a common issue with cases from the Ninth Circuit, where the minority of judges with politically conservative
Conservatism
Conservatism is a political and social philosophy that promotes the maintenance of traditional institutions and supports, at the most, minimal and gradual change in society. Some conservatives seek to preserve things as they are, emphasizing stability and continuity, while others oppose modernism...
leanings had reacted vigorously to a perceived excess on the part of the circuit's dominant liberals
Liberalism
Liberalism is the belief in the importance of liberty and equal rights. Liberals espouse a wide array of views depending on their understanding of these principles, but generally, liberals support ideas such as constitutionalism, liberal democracy, free and fair elections, human rights,...
. Oral argument
Oral argument
Oral arguments are spoken presentations to a judge or appellate court by a lawyer of the legal reasons why they should prevail. Oral argument at the appellate level accompanies written briefs, which also advance the argument of each party in the legal dispute...
s were scheduled for April, with a decision expected in June.
Before the Court
The decision to hear Quon attracted attention from several quarters. It would be the first case touching on the workplace privacy rights of public employees since Von Raab, and raised the possibility that the Court would resolve the O'Connor conflict between Scalia's private-workplace standard and the plurality's "operational realities" consideration. It had not been an issue in the case, but Scalia was the only justice from that majority still on the court. New justice Sonia SotomayorSonia Sotomayor
Sonia Maria Sotomayor is an Associate Justice of the Supreme Court of the United States, serving since August 2009. Sotomayor is the Court's 111th justice, its first Hispanic justice, and its third female justice....
was expected to favor the city's side, since she had ruled for New York State's right to search an employee's computer in a similar case as a judge on the Second Circuit
United States Court of Appeals for the Second Circuit
The United States Court of Appeals for the Second Circuit is one of the thirteen United States Courts of Appeals...
.
Electronic privacy advocates agreed with Wardlaw that the case was a "new frontier" for Fourth Amendment jurisprudence, since personal communications technology had advanced considerably since 1987, intertwining personal and work lives much more closely. It was expected that the court's ruling, though it would only directly affect government workplaces, would have an impact on the private workplace as well.
Kerr told The New York Times
The New York Times
The New York Times is an American daily newspaper founded and continuously published in New York City since 1851. The New York Times has won 106 Pulitzer Prizes, the most of any news organization...
that despite the novelty of the issue, he expected the resulting decision to be narrow due to the unusual circumstances from which the case arose. Elsewhere, he said the Court would be better off avoiding the question of whether the department violated the privacy of the people Quon was texting due to the lack of clear precedent for such a ruling with older technologies and the minimal treatment of the issue in the lower-court opinions.
Briefs
The parties' briefs reiterated their earlier arguments. "The City and Department should not be punished because a legitimate workplace search happened to turn up sexually explicit messages that plaintiffs need not and should not have sent on government-issued equipment in the first place," the city stated. The respondents urged the Court to use the case to adopt the O'Connor plurality's "operational realities" standard, and set forth a more extensive response to the pettioners' claim that the text messages' status as public records was fatal to any reasonable expectation of privacy by any correspondent.Amici briefs were filed by several interested organizations for both sides. The city was joined by the federal government, represented by the Solicitor General's office, the National League of Cities
National League of Cities
The National League of Cities is an American advocacy organization representing 19,000 cities, towns, and villages, and encompassing 49 state municipal leagues....
and other organizations representing municipal and county governments and school-governance organizations led by the National School Boards Association
National School Boards Association
The National School Boards Association, or NSBA, is a nonprofit organization operating as a federation of state associations of school boards across the United States. Founded in 1940, NSBA represents 95,000 local school board members who govern 14,890 local school districts serving more than 47...
. All believed their ability to function effectively as government bodies would be impeded if the Ninth Circuit was upheld. The Los Angeles Times
Los Angeles Times
The Los Angeles Times is a daily newspaper published in Los Angeles, California, since 1881. It was the second-largest metropolitan newspaper in circulation in the United States in 2008 and the fourth most widely distributed newspaper in the country....
and other media organizations also urged reversal on the grounds that the public interest was served by as broad a definition of public records as possible, particularly where police operations were concerned.
Weighing in on Quon's side was the AFL-CIO
AFL-CIO
The American Federation of Labor and Congress of Industrial Organizations, commonly AFL–CIO, is a national trade union center, the largest federation of unions in the United States, made up of 56 national and international unions, together representing more than 11 million workers...
, on behalf of those members of its constituent labor unions who were public employees. The New York Intellectual Property Law Association (NYIPLA), whose members litigate privacy claims, called on the Court to refrain from setting down any clear rules as technology, and social expectations of privacy related to it, were still evolving. The Electronic Privacy Information Center
Electronic Privacy Information Center
Electronic Privacy Information Center is a public interest research group in Washington, D.C. It was established in 1994 to focus public attention on emerging civil liberties issues and to protect privacy, the First Amendment, and constitutional values in the information age...
's brief, signed by technical experts as well as lawyers, focused on the importance of data minimization to both security and privacy protection. The Electronic Frontier Foundation
Electronic Frontier Foundation
The Electronic Frontier Foundation is an international non-profit digital rights advocacy and legal organization based in the United States...
(EFF), American Civil Liberties Union
American Civil Liberties Union
The American Civil Liberties Union is a U.S. non-profit organization whose stated mission is "to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States." It works through litigation, legislation, and...
, Center for Democracy and Technology
Center for Democracy and Technology
The Center for Democracy & Technology is a Washington, D.C. based 501 non-profit public-interest group that works to promote an open, innovative and free Internet....
and Public Citizen
Public Citizen
Public Citizen is a non-profit, consumer rights advocacy group based in Washington, D.C., United States, with a branch in Austin, Texas. Public Citizen was founded by Ralph Nader in 1971, headed for 26 years by Joan Claybrook, and is now headed by Robert Weissman.-Lobbying Efforts:Public Citizen...
filed a joint brief. The conservative Rutherford Institute
Rutherford Institute
The Rutherford Institute is a non-profit group based in Charlottesville, Virginia dedicated to the defense of civil liberties, human rights, and religious liberty. It was founded in 1982 by John W. Whitehead...
filed a motion requesting leave to file their amicus in favor of respondents since one withheld permission.
Oral argument
Oral argumentOral argument
Oral arguments are spoken presentations to a judge or appellate court by a lawyer of the legal reasons why they should prevail. Oral argument at the appellate level accompanies written briefs, which also advance the argument of each party in the legal dispute...
s were heard on April 19, 2010. Kent Richland, the city's lawyer, who had previously argued before the justices on behalf of Anna Nicole Smith
Anna Nicole Smith
In 1992 Smith was chosen by Hugh Hefner to appear on the cover of the March issue of Playboy, where she was listed as Vickie Smith, wearing a low-cut evening gown. The centerfold was photographed by Stephen Wayda. Smith said she planned to be "the next Marilyn Monroe". Becoming one of Playboys...
in Marshall v. Marshall
Marshall v. Marshall
Marshall v. Marshall, 547 U.S. 293 , is a case in which the United States Supreme Court held that a federal district court had equal or concurrent jurisdiction with state probate courts over tort claims under state common law...
, and Deputy Solicitor General Neal Katyal argued for petitioners; Dieter Dammeier, a former police officer himself, argued for Quon and the respondents.
Commentators, looking for signs as to how the Court would rule, felt the justices' questions suggested a narrow focus on the issue of whether the search was reasonable. Chief Justice John Roberts
John Roberts
John Glover Roberts, Jr. is the 17th and current Chief Justice of the United States. He has served since 2005, having been nominated by President George W. Bush after the death of Chief Justice William Rehnquist...
surprised some with his apparent strong sympathy for Quon's claims. Orin Kerr
Orin Kerr
Orin S. Kerr is a professor of law at the George Washington University Law School, legal representation for the MySpace "cyber bullying" pioneer Lori Drew and a leading scholar in the subjects of computer crime law and internet surveillance. In the fall of 2006, he visited as an associate professor...
noted the many questions asked about how the pagers and other technologies work, and how that lack of familiarity reinforced, in his view, the need for caution, quoting from one of his own papers: "Judges who attempt to use the Fourth Amendment to craft broad regulatory rules covering new technologies run an unusually high risk of crafting rules based on incorrect assumptions of context and technological practice."
Petitioners
During Richland's argument, the justices inquired closely about the city's contention that Quon had no reasonable expectation of privacy over his text messages. Justice SotomayorSonia Sotomayor
Sonia Maria Sotomayor is an Associate Justice of the Supreme Court of the United States, serving since August 2009. Sotomayor is the Court's 111th justice, its first Hispanic justice, and its third female justice....
asked Richland about a hypothetical scenario in which a sergeant knew that various officers engaged in sexually explicit texting with romantic partners and decided to look at the transcripts out of sheer salacity. "Does that officer have any expectation of privacy that his boss won't just listen in out of prurient interest?" Richland answered that the motive of the examiner should have no impact on a privacy expectation. "[W]hen the filthy-minded police chief listens in, it's a very bad thing, but it's not—it's not offending your right of privacy," concluded Justice Antonin Scalia
Antonin Scalia
Antonin Gregory Scalia is an American jurist who serves as an Associate Justice of the Supreme Court of the United States. As the longest-serving justice on the Court, Scalia is the Senior Associate Justice...
.
Justice Ruth Bader Ginsburg
Ruth Bader Ginsburg
Ruth Joan Bader Ginsburg is an Associate Justice of the Supreme Court of the United States. Ginsburg was appointed by President Bill Clinton and took the oath of office on August 10, 1993. She is the second female justice and the first Jewish female justice.She is generally viewed as belonging to...
asked how the OPD could have examined the transcripts lawfully if the SCA forbade their release. Richland replied that the statute was complex and highly technical, and cited the Court's 1980 United States v. Payner
United States v. Payner
United States v. Payner, , is a decision of the United States Supreme Court reversing a district's court's suppression of evidence in the criminal prosecution of an Ohio businessman charged with tax evasion. The case concerned both issues of criminal procedure and the application of the...
to the effect that "a complicated law ... simply cannot be the basis for a reasonable expectation of privacy." He then turned over the rest of his time to Katyal.
During the Deputy Solicitor General's argument, another recent appointee, Justice Samuel Alito
Samuel Alito
Samuel Anthony Alito, Jr. is an Associate Justice of the U.S. Supreme Court. He was nominated by President George W. Bush and has served on the court since January 31, 2006....
talked about the uncertainties of modern communications technology. "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,An allusion to the Court's holding in California v. Greenwood
California v. Greenwood
California v. Greenwood, 486 U.S. 35 , was a case in which the Supreme Court of the United States held that the Fourth Amendment does not prohibit the warrantless search and seizure of garbage left for collection outside the curtilage of a home....
that warrantless searches of garbage left out for pickup were not unreasonable and thus constitutional. which has happened for a long time". After Katyal agreed that these things were "in flux" and thus the Court should avoid making any broadly applicable rules on the first hearing, Chief Justice John Roberts
John Roberts
John Glover Roberts, Jr. is the 17th and current Chief Justice of the United States. He has served since 2005, having been nominated by President George W. Bush after the death of Chief Justice William Rehnquist...
speculated that that principle cut both ways and that perhaps the Court should at least say the Constitution applied in this case and make rules later.
Respondents
When Dammeier argued for the respondents, Ginsburg and BreyerStephen Breyer
Stephen Gerald Breyer is an Associate Justice of the U.S. Supreme Court. Appointed by President Bill Clinton in 1994, and known for his pragmatic approach to constitutional law, Breyer is generally associated with the more liberal side of the Court....
pressed him on why it was unreasonable for the department to review the content of the messages if it wanted to find out if it needed a higher character limit. The lawyer reiterated the jury's finding and said "they didn't need to do that". In response to further questioning from Breyer, he restated the other ways Judge Wardlaw had suggested the department could have obtained the information without reviewing the messages themselves. Justice Sotomayor was skeptical. "You're relying on the very person you're auditing to do the audit for you. That doesn't seem either practical or business-wise."
Justice John Paul Stevens
John Paul Stevens
John Paul Stevens served as an Associate Justice of the Supreme Court of the United States from December 19, 1975 until his retirement on June 29, 2010. At the time of his retirement, he was the oldest member of the Court and the third-longest serving justice in the Court's history...
brought up the issue of public review. His colleague Anthony Kennedy
Anthony Kennedy
Anthony McLeod Kennedy is an Associate Justice of the United States Supreme Court, having been appointed by President Ronald Reagan in 1988. Since the retirement of Sandra Day O'Connor, Kennedy has often been the swing vote on many of the Court's politically charged 5–4 decisions...
noted that attorneys challenging probable cause
Probable cause
In United States criminal law, probable cause is the standard by which an officer or agent of the law has the grounds to make an arrest, to conduct a personal or property search, or to obtain a warrant for arrest, etc. when criminal charges are being considered. It is also used to refer to the...
for a police raid would probably request the pager messages among other things, which Quon would certainly have been aware of, affecting his expectation of privacy. Dammeier responded that any mail he or anyone else sends would certainly be discoverable
Discovery (law)
In U.S.law, discovery is the pre-trial phase in a lawsuit in which each party, through the law of civil procedure, can obtain evidence from the opposing party by means of discovery devices including requests for answers to interrogatories, requests for production of documents, requests for...
in litigation, but that possibility did not materially affect his expectation of privacy over it. He further reminded Scalia that in O'Connor the Court had found a reasonable expectation of privacy over the contents of a public employee's desk. Stevens pointed out that it was more likely that law enforcement communications would be reviewed by third parties than documents in doctors' desks. "I don't think we're taking away the government's ability to do searches under proper circumstances," Dammeier told him.
Dammeier addressed the SCA and Richland's argument that it was too complex to bear on the reasonableness of Quon's expectation of privacy. "It certainly may be not the end-all to the question, but it should be a factor in determining whether or not there’s going to be an expectation of privacy." Scalia said he had not been aware of the statute, and asked if it was reasonable to assume that Quon did. "Petitioners make an argument that because there is this California Public Records Act, that that may diminish one's expectation of privacy", Dammeier said. "Certainly, if we're going to have that, then we should also be having the Stored Communications Act."
The rest of Dammeier's argument was devoted to the issue of the other respondents' privacy expectations in communicating with Quon, after Sotomayor asked him if they could prevail even if Quon did not. Dammeier likened the department's actions to going to the post office to get letters sent to Quon instead of his house. Scalia pointed out that Quon could have obtained hard copies of the messages and circulated them himself. "[W]hen I get a piece of mail from somebody, I could do that as well," the lawyer replied, "but that doesn't mean that the government gets to go to the post office and get my mail before I get it". Richland replied in his rebuttal argument that "the truth is that all of these plaintiffs admitted that they knew that this was a department-issued pager, and this wasn't a post office."
Decision
The Court handed down its decision in June, near the end of its term. Unanimously, the justices ruled for the city that the review of the texts had been a reasonable work-related search, discussing the difficulties raised by the broader issues involved and ultimately declining to rule on them. Kennedy wrote the majority opinion; Scalia and Stevens added concurrences of their own.Majority
Kennedy began by setting forth the facts of the case, its legal history and the relevant laws and precedent. In the opinion's third section, he cautiously considered the question of Quon's privacy expectation. "The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear," he observed, referencing the Court's Olmstead v. United StatesOlmstead v. United States
Olmstead v. United States, , was a decision of the Supreme Court of the United States, in which the Court reviewed whether the use of wiretapped private telephone conversations, obtained by federal agents without judicial approval and subsequently used as evidence, constituted a violation of the...
decision in 1928, in which it had permitted warrantless wiretapping on the grounds that the wiretaps did not actually enter the property of the bootlegger
Rum-running
Rum-running, also known as bootlegging, is the illegal business of transporting alcoholic beverages where such transportation is forbidden by law...
s under investigation, and the Katz v. United States
Katz v. United States
Katz v. United States, , is a United States Supreme Court case discussing the nature of the "right to privacy" and the legal definition of a "search." The Court’s ruling adjusted previous interpretations of the unreasonable search and seizure clause of the Fourth Amendment to count immaterial...
decision which overruled it four decades later.
In that latter case, he wrote, the Court had the "knowledge and experience" to conclude that there was a reasonable expectation of privacy in a telephone booth. "It is not so clear that courts at present are on so sure a ground." He elaborated on these uncertainties, referring to the amici briefs filed by the EFF and NYIPLA:
For instance, he noted that the ready availability of cell phones made them potentially "necessary instruments for self-expression, even self-identification", strengthening a privacy claim. But at the same time they were affordable enough that anyone wanting one for such a purpose could buy their own rather than use one provided by an employer
"A broad holding concerning employees' privacy expectations vis-à-vis employer-provided technological equipment might have implications for future cases that cannot be predicted," Kennedy wrote. "It is preferable to dispose of this case on narrower grounds." He accepted, for argument's sake, three points: that Quon had a reasonable expectation of privacy in his pager messages, that the review of them constituted a search and that the same principles governing a physical search of a public employee's workspace applied to electronic privacy.
While Quon could have had some expectation of privacy, Kennedy continued, it could not have been enough to prevent a review of the messages. Not only had he been told of the possibility of an audit, but as a police officer "he would or should have known that his actions were likely to come under legal scrutiny, and that this might entail an analysis of his on-the-job communications." And, in particular, since the city had purchased pagers for SWAT team members to improve their performance in that capacity, it was reasonable to expect that the city might audit those pagers to assess the performance of both the units and the pagers in SWAT situations.
Citing the same precedent cases that Ikuta had in her dissent from the rehearing denial, Kennedy said the Ninth Circuit erred in suggesting less intrusive means would have yielded the same information. After quoting from those cases to the effect that the text was not required and that letting judges apply it would make effective investigations almost impossible, he concluded that "[e]ven assuming there were ways that OPD could have performed the search that would have been less intrusive, it does not follow that the search as conducted was unreasonable."
He could not find any legal authority or precedent for the respondents' argument that the SCA violation, which was not before the Court, rendered the search per se unconstitutional. To the contrary, he pointed to the Virginia v. Moore
Virginia v. Moore
Virginia v. Moore, 553 U.S. 164 is a decision by the Supreme Court of the United States that addresses the use of evidence obtained by police in a search incident to an arrest which violates state law.-Background:...
case decided the previous term, in which evidence from a search conducted after an illegal arrest was ruled admissible since statutory violations did not inherently constitute Fourth Amendment violations. Nor would an SCA violation have rendered the actions of petitioners unconstitutional since they themselves did not violate it. "The otherwise reasonable search by OPD is not rendered unreasonable by the assumption that Arch Wireless violated the SCA by turning over the transcripts."
Lastly, he ruled that the other respondents beside Quon had not suffered a violation of their privacy. The respondents had, Kennedy wrote, simply argued that a violation of Quon's privacy necessarily violated that of those he exchanged messages with, and did not make a case that they could have suffered a violation even if Quon had not. Since the Court had found that Quon's Fourth Amendment rights were not violated, it therefore had to hold that the others' were not, either.
Concurrences
Stevens' brief concurrence approved of the Court's decision not to resolve the split in standards left by O'Connor. He noted that the facts of the case argued more strongly for the standard proposed by Justice Harry BlackmunHarry Blackmun
Harold Andrew Blackmun was an Associate Justice of the Supreme Court of the United States from 1970 until 1994. He is best known as the author of Roe v. Wade.- Early years and professional career :...
in his dissent, which Stevens had joined. Blackmun had said the justices should adopt neither the plurality's "operational realities" standard nor Scalia's reasonable-in-the-private-sector alternative, but instead consider the circumstances of each particular search. In this case, he reiterated his line of reasoning from oral argument, that Quon's position as a police officer would have seriously limited his expectation of privacy.
Scalia, too, began by addressing O'Connor. The intervening years had not changed his position that the plurality's position in that case was "standardless and unsupported." Nor, a footnote responding to Stevens added, was the approach of that case's dissent relevant unless it was overruled at some point. Applying the test from his concurrence in that case to the instant case, he wrote, "the proper threshold inquiry should be not whether the Fourth Amendment applies to messages on public employees' employer-issued pagers, but whether it applies in general to such messages on employer-issued pagers." But it was unnecessary to answer that question since he agreed with the majority that the search had been reasonable.
Since, he felt, that was all the Court needed to say, the majority's "excursus on the complexity and consequences of answering ... that admittedly irrelevant threshold question" was similarly a waste of effort. "To whom do we owe an additional explanation for declining to decide an issue, once we have explained that it makes no difference?" He then excoriated the majority's "exaggerated" case for restraint:
It was "a heavy-handed hint" to lower courts and future litigants that was likely to encourage even more such suits in the future. "In short, in saying why it is not saying more, the Court says much more than it should."
Reaction
Commentary on the decision focused on the broader issues the Court did not decide. A New York Times editorialEditorial
An opinion piece is an article, published in a newspaper or magazine, that mainly reflects the author's opinion about the subject. Opinion pieces are featured in many periodicals.-Editorials:...
praised the majority's restraint. "Holding off from making broad pronouncements in the midst of a rapidly changing technology environment is a wise display of restraint by the court," agreed The Washington Post
The Washington Post
The Washington Post is Washington, D.C.'s largest newspaper and its oldest still-existing paper, founded in 1877. Located in the capital of the United States, The Post has a particular emphasis on national politics. D.C., Maryland, and Virginia editions are printed for daily circulation...
three weeks later. The EFF likewise praised the limited scope of the decision and found "hopeful hints" in Kennedy's explanation of the cautious approach suggesting that the Court would "cautiously make such decisions based on society's privacy expectations and its level of reliance on new communications technologies." It called on Congress to pass proposed legislation that addressed these issues.
EPIC president Marc Rotenberg
Marc Rotenberg
Marc Rotenberg is President and Executive Director of the Electronic Privacy Information Center in Washington, DC. He teaches Information Privacy Law at Georgetown University Law Center, and testifies frequently before Congress on emerging privacy and civil liberties issues, such as access to...
was dismayed by the Court's caution. "[T]he court could have done what it has done in the past and updated constitutional safeguards in light of new technology", as it did in Katz, he said in a letter responding to the Times editorial. That case had influenced privacy law internationally, and "the court's reluctance to assess these privacy issues also means that it will have less influence on other high courts that address similar questions."
Subsequent jurisprudence
Scalia's criticism was echoed by Eleventh CircuitUnited States Court of Appeals for the Eleventh Circuit
The United States Court of Appeals for the Eleventh Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* Middle District of Alabama...
judge Frank M. Hull
Frank M. Hull
Frank Mays Hull was nominated by President Bill Clinton on June 18, 1997 for the United States Court of Appeals for the Eleventh Circuit to a seat vacated by Phyllis A. Kravitch who took senior status. She was confirmed by the U.S. Senate in a 96–0 vote on September 4, 1997.Hull received her B.A....
in a case reheard to take Quon into account. In March 2010, she had written for a panel deciding Rehberg v. Paulk, a case in which a Georgia man had sued the Dougherty County
Dougherty County, Georgia
Dougherty County is a county located in the U.S. state of Georgia. As of 2000, the population was 96,065. The 2009 Census Estimate shows a population of 95,859. It is included in the Albany, Georgia Metropolitan Statistical Area...
district attorney
District attorney
In many jurisdictions in the United States, a District Attorney is an elected or appointed government official who represents the government in the prosecution of criminal offenses. The district attorney is the highest officeholder in the jurisdiction's legal department and supervises a staff of...
alleging malicious prosecution
Malicious prosecution
Malicious prosecution is a common law intentional tort, while like the tort of abuse of process, its elements include intentionally instituting and pursuing a legal action that is brought without probable cause and dismissed in favor of the victim of the malicious prosecution...
for an investigation into harassing faxes sent to a local hospital. Rehberg had also claimed his privacy was violated by his Internet Service Provider
Internet service provider
An Internet service provider is a company that provides access to the Internet. Access ISPs directly connect customers to the Internet using copper wires, wireless or fiber-optic connections. Hosting ISPs lease server space for smaller businesses and host other people servers...
's (ISP) release of his emails from its server
Server (computing)
In the context of client-server architecture, a server is a computer program running to serve the requests of other programs, the "clients". Thus, the "server" performs some computational task on behalf of "clients"...
in response to a subpoena
Subpoena
A subpoena is a writ by a government agency, most often a court, that has authority to compel testimony by a witness or production of evidence under a penalty for failure. There are two common types of subpoena:...
.
No appeals court had yet been called upon to decide
First impression (law)
First impression is a legal case in which there is no binding authority on the matter presented. Such a case can set forth a completely original issue of law for decision by the courts. A first impression case may be a first impression in only a particular jurisdiction...
whether users had a reasonable expectation of privacy over the content of email. Hull's opinion extrapolated from older precedents on postal and telephone communications, along with more recent cases from district courts and a Tenth Circuit
United States Court of Appeals for the Tenth Circuit
The United States Court of Appeals for the Tenth Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* District of Colorado* District of Kansas...
ruling on email addresses, to assert that there was no reasonable expectation of privacy over email content once it reached a third party's server, since it was transmitted from there to other servers and copied and archived along the way. There was at the time no settled law on the subject, and privacy advocates expressed concern and criticized the decision. After Quon, the panel granted rehearing.
The new decision, handed down a month after Quon, followed it in declining to establish a precedent. "The Supreme Court's more-recent precedent shows a marked lack of clarity in what privacy expectations as to content of electronic communications are
reasonable ... Given the lack of precedent, we now question whether it would be prudent in this case and on this
limited factual record to establish broad precedent as to the reasonable privacy
expectation in email content." The panel thus limited its decision to finding for the appellees on qualified immunity
Qualified immunity
Qualified immunity is a doctrine in U.S. federal law that arises in cases brought against state officials under 42 U.S.C Section 1983 and against federal officials under Bivens v. Six Unknown Named Agents, 403 U.S. 388 . Qualified immunity shields government officials from liability for the...
grounds.
The criticism from within and without led to an article by New York Times
The New York Times
The New York Times is an American daily newspaper founded and continuously published in New York City since 1851. The New York Times has won 106 Pulitzer Prizes, the most of any news organization...
Supreme Court reporter Adam Liptak
Adam Liptak
Adam Liptak is an American journalist, lawyer and instructor in journalism. He is currently the Supreme Court correspondent for The New York Times. In July 2008, Liptak was assigned to take over coverage of the U.S...
finding Quon emblematic of two trends observers found increasingly problematic in Roberts Court
Roberts Court
In the United States, the Roberts Court refers to the Supreme Court of the United States since 2005, under the leadership of Chief Justice John G. Roberts...
opinions: vagueness, and apparent unanimity undermined by multiple concurring opinions. It had been among the record 77% of unanimous decisions from the term with at least one concurrence; as for the former issue, he characterized Hull's description of Quon as calling it "almost aggressively unhelpful to lawyers and judges".
Analysis and commentary
A Harvard Law ReviewHarvard Law Review
The Harvard Law Review is a journal of legal scholarship published by an independent student group at Harvard Law School.-Overview:According to the 2008 Journal Citation Reports, the Review is the most cited law review and has the second-highest impact factor in the category "law" after the...
article was critical of the decision, concurring with Scalia and Hull that it provided "no helpful guidance" to lower courts in resolving similar cases. "[I]ts reluctance to devise an intelligible principle for Fourth Amendment rights regarding technology will have the negative effect of causing lower courts to rely on O'Connor to an even greater extent, [allowing] judges ... to reach whatever conclusion they want. The Court should have ruled that public employees do not enjoy a reasonable expectation of privacy when sending text messages from government-issued devices."
The article noted the irony of Kennedy's musings about the difficulty of crafting privacy standards with technology evolving at a rapid pace when applied to a case that turned on text messages sent on "two-way pager devices that were issued to employees a decade ago and that would likely be deemed antiquated by today's teenagers and young professionals", who largely tend to use cell phones for texting. "Presumably, societal norms with respect to pagers are as developed as they will ever be." Nor could it see work-related employer-issued pagers or other devices being used for self-expressive purposes as Kennedy suggested, since they were functionally no different from any other such item a police department might issue to officers, "much like a police officer's patrol cruiser or sidearm". It did concede that the conflict between the department's written policy and Lt. Duke's verbal assurances to Quon made the issue more complex in this particular case.
The Court's apparent suggestion that "any technology can be seen as emerging", the Review suggested, would not only lead to muddled future jurisprudence, but was in contrast to various lower courts' more successful efforts to do so.Specifically, it cited Biby v. Board of Regents (419 F.3d 845 (8th Cir
United States Court of Appeals for the Eighth Circuit
The United States Court of Appeals for the Eighth Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* Eastern District of Arkansas* Western District of Arkansas...
. 2005), in which a public university's written policy was held to foreclose any expectation of privacy on employee's computers, and United States v. Simons(29 F.Supp. 2d 324 (E.D. Va.
United States District Court for the Eastern District of Virginia
The United States District Court for the Eastern District of Virginia is one of two United States district courts serving the Commonwealth of Virginia...
1998), where it was held that actual office policies and procedures may reduce a public employee's privacy expectations over their desks, files and computers. "While it may be true that technological advances and the increased availability of advanced mobile handsets to individual consumers have blurred the line between private life and the workplace," the article concluded, "it does not necessarily follow that a user has a reasonable expectation of privacy on workplace equipment provided by the employer." As Kennedy had also noted, the proliferation of personal communications devices could make workers more respectful of those distinctions than less. The Review cited as an example the use of webmail services from work computers by many people.
Another commentator took it upon herself to address the issues the Court left unresolved, even before it had heard oral arguments. "Because this holding is so limited, it practically begs for a new case to address the issue more broadly", wrote Amanda Higgins of the Ninth Circuit's opinions, in the Oklahoma Journal of Law and Technology. She agreed with Ikuta's criticism of the panel decision, but argued that the panel should have devoted more attention to the larger issues of Quon's expectation of privacy. "To focus the analysis elsewhere is less than helpful in this already murky area of law."
The jury's finding that the audit was legitimately work-related and not an investigation of misconduct may ultimately have hurt the city, Higgins wrote, since it focused attention on whether it was necessary to read the messages. Had it been found to be investigatory, there would have been more grounds to rule the audit a reasonable search. Other public employers facing similar litigation "will want to get on the court record that their search was for some purpose that will not only pass as reasonable at its inception under the facts of the case ... and will also allow the court to find that the actual method was not excessive in relation to the purpose." They would be best served, she concluded, by making clear, explicit policies on personal use of communications devices and rigorously enforcing those policies. Informal policies in partial or complete conflict with formal ones had created problems for employers in other areas of the law, and it was better to prevent such lawsuits from arising altogether.
See also
- List of United States Supreme Court cases, volume 560
- List of United States Supreme Court cases by the Roberts Court
External links
- Full text of the Supreme Court's opinion
- Electronic Frontier FoundationElectronic Frontier FoundationThe Electronic Frontier Foundation is an international non-profit digital rights advocacy and legal organization based in the United States...
page on the case. - Electronic Privacy Information CenterElectronic Privacy Information CenterElectronic Privacy Information Center is a public interest research group in Washington, D.C. It was established in 1994 to focus public attention on emerging civil liberties issues and to protect privacy, the First Amendment, and constitutional values in the information age...
page on the case. - Orin KerrOrin KerrOrin S. Kerr is a professor of law at the George Washington University Law School, legal representation for the MySpace "cyber bullying" pioneer Lori Drew and a leading scholar in the subjects of computer crime law and internet surveillance. In the fall of 2006, he visited as an associate professor...
's blog posts on the case at The Volokh ConspiracyThe Volokh ConspiracyThe Volokh Conspiracy is a blog which mostly covers United States legal and political issues, generally from a libertarian or conservative perspective. One of the most widely read legal blogs in the United States, The Volokh Conspiracy has more than one million page views each month. This group...