US Supreme Court OK’s Public Employer’s Search of Employee Text Messages
January 12, 2011 by Beeson Tayer & Bodine
The U.S. Constitution’s Fourth Amendment guarantees a person’s privacy from arbitrary and invasive governmental acts, such as unreasonable searches and seizures. This protection also applies when the government acts in its capacity as an employer. In the City of Ontario v. Quon, the United States Supreme Court reversed the Ninth Circuit Court of Appeals decision which held that the City of Ontario had conducted an unreasonable search of an employee’s text messages which allegedly violated that employees reasonable expectation of privacy under the Fourth Amendment.
The City of Ontario Police Department employed Jeff Quon as a Police Sergeant and member of the Police SWAT team. The City provided Quon with a pager for work related purposes. This pager was capable of receiving and sending text messages. While Quon was permitted to utilize the pager for sending personal messages, the employer reserved the right to monitor the employee’s use of the device. When Quon exceeded the limit of his monthly text messages, the City audited those texts and discovered that most of those messages were not work related and some were sexually explicit. Quon alleged that the audit of his text messages constituted an unreasonable search in violation of his Fourth Amendment rights.
Rejecting such a claim, the Supreme Court held that a two-step analysis must be followed to determine when a public employee’s privacy rights are violated. First, because some government offices may be so open that no expectation of privacy is reasonable, a court must first consider the “operational realities of the workplace” to determine if an employee’s constitutional rights are implicated. Second, where an employee has a legitimate expectation of privacy, the nature of an employer’s intrusion on that expectation should be judged by the reasonableness of the invasion under all the circumstances. Writing for the plurality, Justice Kennedy assumed Quon had a reasonable expectation of privacy in the private text messages sent on his employer- issued equipment. Justice Kennedy then went on to address the legitimacy of the City’s reasoning behind the search of Quon’s text messages and the nonexcessive measures utilized by the City in conducting that search, which demonstrated its reasonableness under the circumstances.
Justice Scalia joined the plurality, but asserted that the first prong of this test was unnecessary because “the offices of government employees are generally covered by Fourth Amendment protections.” However, He also concluded that when a governmental employer searches to retrieve “workrelated material 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 Amendment.”
This decision illuminates the inevitable legal conflicts that will arise over privacy concerns created by the use of new technologies, particularly when the intrusion comes from a public sector employer. Justice Kennedy’s decision leaves open the question of when public employees have a reasonable expectation of privacy in the workplace and, by avoiding this controversial question, perpetuates this unsettled area of law.
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