Is Texting Protected Activity?

As reported, the Supreme Court heard oral argument in April, and just issued a unanimous decision in City of Ontario v. Quon. The gist of the decision is that the employee did not have a reasonable expectation of privacy in the pager, and thus the City was entitled to search it. However, the Court came to that conclusion on the narrowest possible grounds, preferring not to make determinations about future technologies today. From the SCOTUS Blog:

...the court unanimously held that it was constitutional to search a police officer’s text messages to a woman with whom he was having an affair. The warrantless search was not an unreasonable violation of the officer’s 4th Amendment privacy rights because it was motivated by legitimate work-related purposes ─ the City of Ontario, Calif. was trying to determine whether it needed to alter its wireless contract, which imposed fees after city employees exceeded character limits on text messages.

 The Court avoided a discussion whether the individual had a reasonable expectation of privacy in the equipment, by stating that the outcome would have been the same one way or the other. The court's justification for avoiding this analysis was that (1) it was not clear that initial analysis (whether the "operational realities" of the situation lowered the employee's expectation of privacy) was required, and (2) they wanted to avoid setting precedent on rapidly changing technologies and society's view regarding privacy. Therefore, to proceed, the Court began with these assumptions:

1. First, Quon had a reasonable expectation of privacy in the text messages sent on the pager provided to him by the City;
2. [S]econd, petitioners’ review of the transcript constituted a search within the meaning of the Fourth Amendment; and
3. [T]hird, the principles applicable to a government employer’s search of an employee’s physical office apply with at least the same force when the employer intrudes on the employee’s privacy in the electronic sphere.

So the analysis proceeded to answer the limited question whether the city's search was reasonable. Generally, the court observed, warrantless searches are per se unreasonable under the Fourth Amendment. However, one exception is for the "special needs of the workplace":

...when conducted for a “noninvestigatory, work-related purpos[e]”or for the “investigatio[n] of work-related misconduct,” a government employer’s warrantless search is reasonable if it is “‘justified at its inception’” and if “‘the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of’” the circumstances giving rise to the search.

The Court found that reviewing the messages to see if (1) the employee was not being forced to pay for excessive work-related messages, and (2) that the City was not being forced to pay for extensive personal communications were legitimate reasons to be reviewing the messages at all. And as to scope, "reviewing the transcripts was reasonable because it was an efficient and expedient way to determine whether Quon’s overages were the result of work-related messaging or personal use" -- and thus not excessively intrusive.

Some ancillary points of note:

• Other reasons the investigation was not intrusive: (1) once the investigator had the information he needed, he redacted the content to include only what was necessary to show the extent of the personal messages, (2) it was conducted for only a two-month period, though even an audit of all months of overages would have been reasonable, (3) Quon was told not to expect messages sent on the system would be private.
• As to the Ninth Circuit's finding that the audit of all his pager messages for two months was not the least intrusive means, the Court held that there is no requirement for least intrusive means, and that an more intrusive search may yet be reasonable.
• As to the fact that the provider (Arch Wireless) violated the Stored Communications Act by turning over the messages, that fact does not lead to the conclusion that the City's search was unreasonable.

Supreme Court takes up Personal Texts on Employer's Device

In City of Ontario v. Quon, a SWAT team was issued pagers, and allowed to use them partially for personal reasons so long as the team-members paid for the personal use. This was in contradiction to standard procedure: employees had no privacy rights to information stored on city equipment. Parsing out the personal usage from the company usage turned out to be too time consuming for the lieutenant in charge, and the city ordered copies of text-messages to evaluate whether to increase the message plan.

The transcripts revealed long sexual exchanges between Quon and two women. Quon paid for the personal messages, but was reprimanded by his department. Quon sued for breach of privacy. The lower courts found that he had no reasonable expectation of privacy in the phone. Now, he's taken the case to the Supreme court on these issues:

1. Whether a SWAT team member has a reasonable expectation of privacy in text messages transmitted on his SWAT pager, where the police department has an official no-privacy policy but a non-policymaking lieutenant announced an informal policy of allowing some personal use of the pagers;
2. Whether individuals who send text messages to a SWAT team member’s SWAT pager have a reasonable expectation that their messages will be free from review by the recipient’s government employer. (Source, SCOTUS Wiki.)

The Supreme Court heard oral argument in April on these issues (apparently stumbling around the technological challenges of the medium), and is expected to issue its decision sometime soon. Some take-aways from the case thus far include (thanks for the heads up):

1. An ISP's inspection of a company's communication system without notice likely violates the Stored Communications Act. Here, the Ninth Circuit Court of Appeals held that it did (issue not up for review here).
2. Preparing and applying use-policies for company owned equipment is vital. If one had been in place and applied properly, Quon's case never would have gotten this far.
3. Companies should ensure that only qualified individuals inform employees of use policies. The lieutenant should not have been in a position to modify the city's use policy here.

Contact me for a review of your "acceptable use" policy to make sure it covers email, pagers, smart phones, texting, mobile devices, and even use of Internet-based media.