USA - Supreme Court Justices Consider Privacy Issues in Text Messaging Case

[law.com] The U.S. Supreme Court on Monday wrestled with the privacy expectations of public employees in a case involving workplace monitoring of text messages.

By the end of arguments in City of Ontario, Calif. v. Quon, some justices, unfamiliar at first with the ins and outs of text technology, appeared better informed, but Jeffrey Quon's expectation of victory appeared to decline.

The city is asking the justices to overturn a ruling by the 9th U.S. Circuit Court of Appeals (pdf), holding that it violated the Fourth Amendment privacy rights of Quon, a member of the Ontario police department's SWAT team, when it reviewed transcripts of his and another officer's text messages on their department pagers. The city contends it reviewed the messages to determine whether it needed to increase the character allotment for all pagers.

The city's counsel, Kent Richland, a partner in Los Angeles firm Greines, Martin, Stein & Richland, told the justices that Quon had no reasonable expectation of privacy given that he had signed a written city policy that explicitly stated there were no privacy rights in the use of city computers and related equipment. He also said Quon and other SWAT team members were told when they subsequently received pagers that the e-mail and Internet use policy covered the pagers as well. And, he added, despite a supervisor's statement that the text messages would not be audited if the officers paid for any overages, that did not undermine the no-privacy policy.

"But we're dealing with Quon's reasonable expectations," interjected Chief Justice John Roberts Jr. "Now, most people will say, well, if you're paying for them, they are yours. And it particularly covered messages off-duty. Now, can't you sort of put all those together and say that it would be reasonable for him to assume that private messages were his business? They said he can do it. They said you have got to pay for it. He used it off-duty. They said they are not going to audit it."

Richland responded, "Not when he was told at the same time that these text messages were considered e-mail and could be audited, and that they were considered public records and could be audited at any time."

Richland received support during the argument from Deputy Solicitor General Neal Katyal, who told the justices, "Millions of employees today use technologies of their employers under policies established by those employers. When a government employer has a no-privacy policy in place that governs the use of those technologies, ad hoc statements by a nonpolicy member cannot create a reasonable expectation of privacy.

"Put most simply, the computer help desk cannot supplant the chief's desk. That simple, clear rule should have decided this case."

He cautioned the Court about generalizing Fourth Amendment rules in this area because the technologies are "rapidly in flux" and expectations of privacy have not been as clearly formed as in traditional Fourth Amendment areas, such as homeowners putting trash to their curbs.

Quon's counsel, Dieter Dammeier of Lackie, Dammeier & McGill in Upland, Calif., told the justices that the department's computer policy did not apply to pagers as written and only came into play much later at a meeting with the SWAT team when the lower-level supervisor modified it.

But the computer policy did apply to associated equipment, said Justice Ruth Bader Ginsburg, adding, "And if an employee is told, ‘Now e-mails aren't private, so we are warning you, we can monitor them,' wouldn't such an employee expect the same thing to apply to the pager?"

The city writes the rules, answered Dammeier, and it is the city's responsibility to make clear to employees to what the rules apply. Here, he added, the supervisor gave the privacy guarantee to Quon: if you pay the overages, we're not going to look at the messages.

Justice John Paul Stevens also pressed Dammeier about the "basic background of a reasonable expectation of privacy." He said these officers were SWAT team members. Suppose they were answering 911 calls.

"Isn't there sort of a background expectation that sooner or later, somebody might have to look at communications for this particular kind of law enforcement officer?" he asked.

Dammeier said that while there may be circumstances that allow the public employer to look at those communications, they do not destroy the employee's reasonable expectation of privacy.

Dammeier and his opponent, Richland, also disagreed on whether the review of the messages by the city was reasonable even if Quon had a reasonable expectation. The 9th Circuit found the search "excessively intrusive."

Richland said the review was reasonable because when the personal messages were discovered, they were redacted. The department only wanted to count the number of on-duty messages to determine whether the character allotment was appropriate. Dammeier insisted there were less intrusive ways to search, such as allowing the officers to count their own messages or to redact those that were not work-related.

High Court Justices Consider Privacy Issues in Text Messaging Case