We all do it. We send personal messages via text and email from our work computers, cell phones, blackberries, etc. Like the “personal phone call” employers usually don’t mind except when the privilege gets abused. But unlike the personal phone call, the email or text does not go away. It stays forever lodged on your employer’s hard drive or on its phone bill. So the question becomes, can your boss look at those emails and texts? Last week, the Supreme Court said that the answer is “Yes” but in a muddled opinion which did not provide clarity for the future.
The case is called City of Ontario (California) v. Quon (http://www.supremecourt.gov/opinions/09pdf/08-1332.pdf) and while it answered the question in the affirmative it actually gave some hope to privacy advocates. Quon was a cop in Ontario who could not stay within his text character limits on his Department-issued text-pager. He kept getting into trouble for running over and he would have to reimburse the City for the overage. The City decided one day to see why he kept going over – was the limit too low, was he overworked, or was he just texting all day. Turns out it was the latter, including several sexually explicit texts. He was disciplined and then he sued.
Because it was a public employer, the issue was whether the search violated the Fourth Amendment’s prohibition against unreasonable searches by the government. (I will discuss the issue of a private employer later on in another piece). As with all 4th Amendment cases, the central issues are (1) “Was there an expectation of privacy?” and (2) “Was the search reasonable?”
The Justices were unanimous in finding the City could look at the texts, but were split on why and whether Question (1) had to be answered. Justice Kennedy wrote the opinion which everyone but Scalia and Stevens joined. Kennedy said that even though he was a public employee and it was a public pager, he still had an expectation of privacy to the substance of the texts he issued. It also held importantly, that the Fourth Amendment does apply not only to the physical office of a public employee but to the “electronic sphere” as well. Without getting into too much Constitutional analysis, I want to point out that the opinion opened up an old argument over how to determine if a public employee has an expectation of privacy in a public workplace. In O’Connor v. Ortega, decided in 1987, four justices held that the issue had to be evaluated on a case by case basis examining “the operational realities” of the workplace – was it so open that no one had privacy; did the doors have locks, etc. Scalia in his opinion in O’Connor said that it was unworkable to have to examine the “operational realities” and that it was just easier and truer to the Constitution to say that the Fourth Amendment always applies to public employees and the just analyze whether the search was reasonable. (Since only four justices signed the deciding opinion, it is not really binding on future cases.) But while the Court here stated it still did not know which O’Connor method was better, it applied the “operational realities” analysis and decided that there was an expectation of privacy. Scalia felt it was wrong to do so as lower courts will now think that this is the test that should always be applied in these types of cases.
The opinion then went on to also say that the search was reasonable because it was work-related and not overly intrusive; all they did was read the texts from a printout they received from the carrier. But the Court -aware that this is a hot topic- made it clear that it was not saying anything more than THIS search was reasonable under THESE circumstances.
Stevens agreed the search was reasonable but said that he would also have decided that Quon did not have an expectation of privacy since it was a public pager and he was involved in law enforcement. Scalia said that since the search was reasonable, there was no need to decide if Quon had an expectation of privacy. He called the main opinion’s use of the O’Connor test “unnecessary,” “exaggerated” and a “digression.”
In making sure that the public was aware that it was not deciding the ultimate issue -whether the Fourth Amendment applies to searches of employee’s communications on employer-issued pagers-Kennedy wrote:
Prudence counsels caution before the facts in this case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations of employees using employer-provided communication devices. Rapid changes in the dynamics of communication and information transmission are evident not just in the technology itself but in what society accepts as proper behavior. At present, it is uncertain how workplace norms,and the law’s treatment of them, will evolve.
Scalia was harsh in his response to this section of the opinion:
The Court’s implication, . . . that where electronic privacy is concerned we should decide less than we otherwise would (that is, less than the principle of law necessary to resolve the case and guide private action)—or that we should hedge our bets by concocting case-specific standards or issuing opaque opinions—is in my view indefen-sible. The-times-they-are-a-changin’ is a feeble excuse for disregard of duty.
So the Court decided for now (and likely for awhile) that it will have to look at each case on its own facts and not set out a rigid rule to apply to all cases. But it is clear from the above that the Court is sharply divided on this issue and that it will likely be a topic the Court will have to come back to a great deal as technology changes under the standard set in Quon. I have to agree with Scalia on this one. The Court should have just let it be decided on the reasonableness issue and wait for the right case to decide the issue once and for all.