City of Ontario v. Quon
Concerning Text Messaging Privacy in the Workplace
- US Federal Court Upholds "Right to be Forgotten" for Seized Data: A federal appeals court ruled that the government violated the Fourth Amendment when investigators searched computer files that had been seized in an unrelated investigation more than two and a half years earlier. The Second Circuit found that the government has a duty to delete all files not responsive to the original warrant and cannot indefinitely retain data "for use in future criminal investigations." This rule imposes a data minimization requirement on law enforcement investigators and is similar also to the much discussed "right to be forgotten." EPIC argued in favor of the data minimization principles adopted by the Ninth Circuit in US v. Comprehensive Drug Testing. For more information, see United States v. Ganias, EPIC: Quon v. City of Ontario, CA and EPIC: Code of Fair Information Practices. (Jun. 20, 2014)
- California Supreme Court Allows Warrantless Searches of Cell Phones: In People v. Diaz, the California Supreme Court has held that an exception to the Fourth Amendment permits warrantless searches of a person's cellphone following an arrest. The court said that the search in this case was "incident to a lawful arrest." In a dissenting opinion, Judge Werdegar said that the exception was intended to permit warrantless searches of clothing or small physical containers, and that accessing electronic data storage devices is uniquely invasive. "Never before has it been possible to carry so much personal or business information in one's pocket or purse" the judge stated. In a recent Supreme Court "friend of the court" Brief, EPIC explained that modern communications devices contain extensive personal information and should be entitled to privacy protection. For more information, see City of Ontario v. Quon. (Jan. 4, 2011)
- Ninth Circuit Strips Search Guidelines from Fourth Amendment Opinion: A new opinion from the United States Court of Appeals for the Ninth Circuit raises many questions about procedures to be followed in electronic searches. Last year in United States v. Comprehensive Drug Testing, Inc., the court set out guidelines for electronic searches and seizures so that the "plain view" doctrine did not allow electronic fishing expeditions. The guidelines followed an approach that is routinely used for electronic surveillance. However, on rehearing the case following objections from government prosecutors, the court's new opinion removed the guidelines though it still concluded that the search at issue was impermissible. EPIC had argued in an amicus brief for the Supreme Court that the guidelines in Comprehensive Drug Testing should be broadly applied to searches of electronic media. For more information, see EPIC: City of Ontario v. Quon. (Sep. 15, 2010)
- EPIC Urges Senate to Explore Kagan's Views on Privacy: In a letter to the Senate Judiciary Committee, EPIC has asked Senators to examine the views of the Supreme Court nominee on privacy and related issues. Noting that the Court increasingly confronts cases concerning the Fourth Amendment and privacy, EPIC said it is "important and necessary" to explore the nominee's views on these topics. The hearings are expected to continue through this week. See EPIC - Elena Kagan and Privacy and EPIC - Doe v. Reed and EPIC - City of Ontario v. Quon. (Jun. 28, 2010)
- Supreme Court Rules Against Text Message Privacy, Permits Search of Public Employee's Pager: The Supreme Court has issued a ruling in City of Ontario v. Quon, a case concerning the reasonablenees of a search of a public employee's pager. EPIC filed a "friend of the court" brief in the case, arguing that data minimization practices should be followed for electronic searches, and that the search, which uncovered personal texts unrelated to the purpose of the search, was therefore unreasonable. EPIC urged the Supreme Court to apply the approach set out in Comprehensive Drug Testing v. United States, which allows a government agency to undertake appropriate searches without unnecessarily violating privacy interests. The Court ruled that the search was reasonable, reversing the Ninth Circuit's decision that such a search be conducted through the least intrusive means possible. For more information, see EPIC: City of Ontario v. Quon. (Jun. 17, 2010)
- President Obama Nominates Elena Kagan for Supreme Court: President Obama has nominated Solicitor General Elena Kagan for the seat on the United States Supreme Court that will be vacated by Associate Justice John Paul Stevens when the term ends this June. Justice Stevens served as a justice for 35 years, and participated in many important privacy cases. Kagan, the former dean of Harvard Law School, wrote about the Supreme Court confirmation process in 1995 that Senators should insist on "evoking a nominee's comments on particular issues—involving privacy rights, free speech, race and gender discrimination, and so forth—that the Court regularly faces." EPIC has submitted amicus briefs in two cases currently before the Court. For more information, see EPIC - Doe v. Reed and EPIC - City of Ontario v. Quon. (May. 11, 2010)
- Supreme Court Hears Arguments in Text Messaging Case: The U.S. Supreme Court held arguments in City of Ontario v. Quon. The Court will determine whether a government employer can review the contents of private text messages sent from an employee's pager through a private communications company. EPIC filed a "friend of the court" brief arguing that data minimization practices should be applied to public sector searches and that the search was therefore unreasonable. EPIC urged the court to apply the standards set out in Comprehensive Drug Testing v. United States, which allow a government agency to undertake appropriate searches without unnecessarily violating privacy interests. For more information, see EPIC: City of Ontario v. Quon. (Apr. 20, 2010)
- Supreme Court to Hear Arguments in Text Messaging Privacy Case: The Supreme Court will hold oral arguments on Monday, April 19 in City of Ontario v. Quon, a case in which the Court will determine whether a government employer can search the content of text messages sent from an employee's pager. EPIC's has filed a "friend of the court" brief arguing that data minimization practices should be applied to public sector searches because of the Fourth Amendment reasonableness requirement and the fact that communications devices today collect and store detailed personal information, including internet search history, text messages, emails, and locational data. EPIC urged the court to apply the standards set out in Comprehensive Drug Testing v. United States, which allow a government agency to undertake appropriate searches without unnecessarily violating privacy interests. For more information, see EPIC: City of Ontario v. Quon. (Apr. 15, 2010)
- EPIC Files Supreme Court Brief in Electronic Privacy Case: EPIC has filed a "friend of the court" brief in the United States Supreme Court, urging the Justices to protect the privacy of public employees who use electronic communications devices. In City of Ontario v. Quon, the Supreme Court has been asked to determine whether a government employer can search the content of text messages sent from an employee's pager. EPIC's brief argues that data minimization practices should be applied to public sector searches because of the Fourth Amendment reasonableness requirement and the fact that employer-issued devices collect and store detailed personal information, including internet search history, text messages, emails, and locational data. EPIC urged the court to apply the standards set out in Comprehensive Drug Testing v. United States, which allow a government agency to undertake appropriate searches without unnecessarily violating privacy interests. For more information, see EPIC: City of Ontario v. Quon. (Mar. 22, 2010)
- Supreme Court to Hear Workplace Privacy Case, Rule on Safeguards for Text Messages: The Supreme Court agreed to hear a case that will determine what privacy safeguards apply to text messages transmitted through government employees' pagers. In City of Ontario v. Quon, a federal appeals courts held that California police officers "have a reasonable expectation of privacy" in some personal text messages sent while at work. The Supreme Court will review the ruling. For more, see EPIC Workplace Privacy. (Dec. 14, 2009)
The Supreme Court ruled that the government’s warrantless search of a government employee's text messages did not violate the Fourth amendment. Although warrantless searches are usually per se unconstitutional, the Court stated that this case's facts fit within a 4th Amendment exception for when the government acts an employer maintaining a workplace. The Court applied the plurality approach from O’Connor v. Ortega, finding that the government had a "non-investigatory, work-related purpose" for the search. In this case, the government acted reasonably in reviewing transcripts of the text messages because a reasonable law enforcement employee would have been aware that such review was possible and the method was a reasonable means to pursue the legitimate government interest in determining what the device was being used for. Justice Kennedy’s majority opinion explicitly limited its analysis to the facts at issue and emphasized the narrow scope of the ruling, explaining that courts should avoid making broad decisions regarding expectations of privacy in still-evolving communication technologies.
(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.
The basic issue in Quon is whether government employees have a constitutional right to keep text messages private. The Ontario Police Department (OPD) issued pagers to SWAT team members and warned the members that they would be responsible for any charges incurred for excessive use. Official department policy stated that it had the right to monitor “network activity including email and Internet use,” and that officers “should have no expectation of privacy" in those communications. However, the lieutenant who administered the pagers had an informal policy of not examining officers' messages as long as they voluntarily paid for charges incurred for excessive use. Sergeant Jeff Quon, a member of the OPD SWAT team, exceeded the permitted use several times, but voluntarily paid for the charges each time.
The OPD police chief later ordered the lieutenant to obtain transcripts of pager use for certain officers, including Sgt. Quon, who had repeatedly exceeded the permitted use. Accordingly, the lieutenant obtained the transcripts from a private contractor, Arch Wireless. The police chief directed the lieutenant “to determine if the messages were exclusively work related, thereby requiring an increase in the number of characters officers were permitted, . . . or if they were using the pagers for personal matters.” A review of the transcripts revealed that Sgt. Quon had exchanged hundreds of personal messages, many of them sexually explicit messages between Sgt. Quon and both his wife and another woman.
Quon and three individuals with whom he had exchanged text messages sued the city, the OPD and others, alleging a violation of their privacy rights under the Fourth Amendment and the California Constitution. Reversing a defense judgment, the Ninth Circuit held that the plaintiffs’ rights to privacy under the federal and state constitutions had been violated because the search was not reasonable in scope. 529 F.3d 892. The Ninth Circuit found that the OPD could have verified the adequacy of the character limit without intruding on the plaintiffs’ privacy rights—for example, by warning Quon that for a particular month he was forbidden from using his pager for personal communications and that the contents of all his messages for that month would be reviewed to ensure compliance. The Ninth Circuit also held that the city’s formal policy concerning its right to monitor electronic communications had been overridden by the “operational reality” of the OPD lieutenant’s informal policy regarding the use of pagers by police officers. The United States Supreme Court granted the defendants’ petition for a writ of certiorari. The petition asked the Court to decide the scope of the various plaintiffs’ reasonable expectations of privacy in the text messages, including the effect of the seemingly contradictory formal and informal policies. The petition also asked the Court to resolve a conflict among the circuit courts of appeals on whether a “less intrusive means” analysis was appropriate.The Court's decision will hinge on whether employees have a "reasonable expectation of privacy" when they text while at work.
The Court will also consider whether government workers' rights are less extensive if they use government-owned pagers. There are special constitutional rules for public employees. In O'Connor v. Ortega, the Supreme Court, in a plurality opinion by Justice O'Connor, extended Fourth Amendment privacy protection to government employees under certain circumstances. The plurality opinion effectively held that employees lose their Fourth Amendment privacy rights if they share their workspace with other employees, or if the employer has a policy stating that the employees have no workplace privacy rights. Although the O'Connor framework arguably is inapplicable to Quon because the text messages in Quon were obtained from a private provider and not from a government workplace, the Court may analyze the case under O'Connor and decide to extend or modify its approach.
The Ninth Circuit, which decided the case below, held that users of text messaging services ordinarily have a constitutional expectation of privacy in the contents of their text messages. It held that the police department's informal policy of not examining officer's text messages made the officer's expectation of privacy in those messages reasonable. But, the court did not make clear whether the department's policies are relevant only because of the special constitutional rules for public employees.
EPIC has a long history of working with workplace privacy issues. EPIC's webpage on workplace privacy examines the privacy protection available to workers both in the United States and internationally. In the United States and many third-world countries, workers have very few privacy protections in law. In contrast, European employers are bound by comprehensive data protection acts that limit and regulate the collection of personal information on workers.The Electronic Communications Privacy Act of 1986 (ECPA) is the primary federal statute that offers workers protections in communications privacy. The ECPA prohibits the intentional interception of electronic communications. However, the ECPA contains several loopholes that facilitate employee monitoring.
Cases like Quon present a unique opportunity for courts to affect the privacy protection available to workers in the United States. The lower court's decision in Quon provides strong protections for workplace privacy. EPIC believes it is important for people to be able to keep their personal lives private, even while at work. Quon also raises interesting issues for people who send texts to government employees - it's critical that their privacy be respected too.
- EPIC's amicus curiae brief
- Amicus brief of the League of California Cities and the California State Association of Counties
- National School Boards Association, the National Association of Secondary School Principals and the California School Boards Association
- The National League of Cities, National Association of Counties, International City/County Management Association, the U.S. Conference of Mayors, and the International Municipal Lawyers Association
- Los Angeles Times Communications LLC, the Press-Enterprise Company, the Associated Press, E.W. Scripps Co., the California Newspapers Publishers Association, the Reporters Committee for Freedom of the Press, the First Amendment Coalition and Californians Aware
- American Federation of Labor and the Congress of Industrial Organizations
- New York Intellectual Property Law Association
- Electronic Frontier Foundation, Center for Democracy & Technology, American Civil Liberties Union, and Public Citizen in Support of Respondent
- Motion for Leave to File Amicus Curiae Brief and Brief for the Rutherford Institute in Support of Respondent
- Brief for the United States in Support of Reversal
- Should Personal Texts From Work Devices Be Private?, Nina Totenberg, Op-Ed, NPR, April 15, 2010.
- Sexting, Texting and EDD Before the Court, Farrah Pepper and Jeffrey D. Coren, Law.com, March 24, 2010.
- In nation of exhibitionists, there's still a demand for privacy, Michael Gerson, Op-Ed, Washington Post, Jan. 15, 2010.
- Court to Rule on Privacy of Texting, Robert Barnes, Washington Post, Dec. 15, 2009.
- Text-Message Case Could Redefine Workplace Privacy, Liz Halloran, National Public Radio, Dec. 15, 2009.
- Supreme Court Takes Up Text Privacy Case, David G. Savage, Los Angeles Times, Dec. 15, 2009.
- Supreme Court to Rule on Employee Privacy, Tony Bradley, PC World, Dec. 15, 2009.
- Supreme Court Takes Texting Case, Adam Liptak, New York Times, Dec. 14, 2009.
- Supreme Court to Look at Employees' Privacy Rights, Warren Richey, Christian Science Monitor, Dec. 14, 2009.
- Government-Worker Privacy Gets U.S. High Court Review, Greg Stohr, Bloomberg, Dec. 14, 2009.
- Court to review employer access to worker messages, Associated Press, Dec. 14, 2009.
- Thoughts on City of Ontario v. Quon: The Fourth Amendment and Privacy of Electronic Communications in the Workplace, Daniel Solove, Concurring Opinions, April 15, 2010.
- Some Thoughts on the Reply Brief in City of Ontario v. Quon, Orin Kerr, The Volokh Conspiracy, April 13, 2010.
- Communicating with Those Who Have no Privacy Rights: The Hard Question in City of Ontario v. Quon, Orin Kerr, The Volokh Conspiracy, March 31, 2010.
- Supreme Court Grants Cert on Fourth Amendment Protection in Text Messages, Orin Kerr, The Volokh Conspiracy, Dec. 14, 2009.
- Will the Supreme Court Rethink Public Employee Privacy Rights in Quon?, Orin Kerr, The Volokh Conspiracy, Dec. 14, 2009.
- City of Ontario v. Quon, Lyle Denniston, ScotusWiki, Dec. 14, 2009.
- High Court to Review Text-Messaging Privacy Case, American Constitution Society Blog, Dec. 14, 2009.
- On Text Messages and . . . Waiting for Citizens’, Ashby Jones, WSJ Law Blog, Dec. 14, 2009.
- The YouTube Bully and the Sex-Messaging Cop, Emily Bazelon, Slate, Dec. 16, 2009.
- No More Sexting with Sotomayor on the Court, Jessica Dweck, Double X, Dec. 18, 2009.
- Supreme Court to Hear Text Message Privacy Case, Lisa Guerin, Nolo's Employment Law Blog, Dec. 19, 2009.
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Communications Law and Policy
Jerry Kang and Alan Butler