Are employee’s text messages made during work considered private communications? It doesn’t look like it. In its June 17, 2010 decision in
Quon involved a City of
Within the first or second billing cycle after the pagers were distributed, Quon exceeded his monthly text message character allotment. In reviewing Quon’s usage amounts, the officer responsible for the City’s contract with the wireless provider suggested that Quon reimburse the department for the overage fee rather than have his text messages audited, and thereafter Quon started reimbursing OPD for excess usage.
Over the next few months, Quon exceeded his character limit three or four times and at some point OPD decided to see whether the overage was a result of the character limit being too low or if the overages were for personal messages. Shortly thereafter, the department requested copies of the text message transcripts from its wireless provider. In reviewing Quon’s transcripts, the department representative discovered that many of the messages sent and received on Quon’s pager were not work related, and that some were sexually explicit. The issue was referred to OPD’s internal affairs division which conducted a thorough review of the text messages. Following this review, OPD concluded that of the 456 messages sent or received by Quon during work hours in the month of August 2002, no more than 57 were work related. Quon had also sent as many as 80 messages during a single day at work and on an average workday, he would send or receive 28 messages, of which only 3 were related to police business. The internal affairs investigation concluded that Quon had violated OPD rules against pursuing personal business while on duty and Quon was allegedly disciplined.
Quon ultimately filed suit against OPD, the City, and others claiming that his Fourth Amendment right against unlawful search and seizure had been violated when OPD obtained and reviewed the text messages. The case was initially filed in United States District Court, Central District of California. Relying on the plurality opinion in O'Connor v. Ortega, 480
Quon appealed and the United States Court of Appeals for the Ninth Circuit reversed in part. 529 F. 3d 892 (2008). While the Ninth Circuit agreed with the District Court that Jeff Quon had a reasonable expectation of privacy in his text messages, it did not find that the search was reasonable. Even though the search was conducted for "a legitimate work-related rationale," the Court of Appeals concluded, it "was not reasonable in scope."
The Supreme Court granted certiorari. Relying upon the standard set out in O’Conner, 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. 480
The Supreme Court found that the warrantless review of Quon's pager transcript was reasonable under the circumstances because it was motivated by a legitimate work-related purpose, and because it was not excessive in scope. See 480
Critically, the Court went on to conclude that a search of this type would be regarded as reasonable and normal in the private-employer context as well.