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City of Ontario v. Quon: Supreme Court Holds That a Government Employer’s Search of an Employee’s Messages on a Work-Related Pager Was Reasonable and Not a Violation of the Fourth Amendment

Fourth Amendment Privacy

Ontario v. Quon, No. 08-1332 (U.S. Jun. 17, 2010)

Slip Opinion

The United States Supreme Court reversed a Ninth Circuit Court of Appeals decision that held that the Petitioner City of Ontario’s (“Ontario”) search of the Respondent Jeff Quon’s text messages was unreasonable and, therefore, a violation of Quan’s reasonable expectation of privacy under the Fourth Amendment.

The Supreme Court held that the search administered by the Petitioner was reasonable and did not violate the Respondent’s Fourth Amendment rights regarding government employers. To reach this conclusion, Justice Kennedy assumed that Quon did have a reasonable expectation of privacy. Under the standards outlined by the plurality and Justice Scalia’s concurrence in O’Connor v. Ortega, the Supreme Court held that the legitimacy of the City’s reasoning behind the search and the nonexcessive measures utilized demonstrated reasonableness. In so holding, Justice Kennedy recognized  this decision’s potential to determine the larger question surrounding employees’ expectation of privacy with regards to government employers and the rapid growth of information and communication technology today. Kennedy mentioned the changing privacy expectations of employees and arguments for and against increased privacy but asserted that he wanted to avoid the volatile and far-reaching consequence of addressing such an issue. Therefore, he concluded that there was a reasonable expectation of privacy in this case in order to narrow the holding.

The New York Times has an overview of the Supreme Court’s decision. SCOTUSBlog analyzed the majority opinion and Justice Scalia’s concurrence in the case and their implications for the question of privacy in the realm of technology. The Electronic Frontier Foundation, who filed an amicus brief in favor of a narrow holding, elaborated upon its support for and concerns about the holding.

Ontario employed Respondent Jeff Quon as a police sergeant and a member of the SWAT Team. Ontario assigned Quon and other SWAT members a pager for work-related purposes, reserving the right to monitor their employees’ use of the device and asserting that the employees should not expect confidentiality. Quon exceeded his monthly text message amount several times and paid Ontario back for the excess. Eventually, Ontario audited his text messages and found that many of them were being used for personal reasons. During trial, a jury found that Ontario conducted the audit for a legitimate work related purpose – namely to determine the efficacy of the character limits.

The Supreme Court analyzed the situation under both approaches discussed in O’Connor for analyzing Fourth Amendment claims against government employers. The plurality in O’Connor established a two-step process: a court must determine whether the employee has a reasonable expectation of privacy based on the nature of the workplace, and, if there is such an expectation, a court then must use a reasonableness test to analyze an employer’s investigation. Justice Scalia asserted that the reasonable expectation of privacy inquiry is unnecessary and that government employees are covered by Fourth Amendment protections as a general matter. Thus courts need only decided whether an employer’s investigation was reasonable. In order to avoid addressing the question of reasonable expectations of privacy, Justice Kennedy elected to assume that Quan had a reasonable expectation of privacy and address the matter based on the reasonableness test. He held that the search was reasonable under both frameworks based on the limited amount of data Ontario looked at and the legitimate purpose.

Justice Stevens concurred and joined the opinion in full, highlighting the majority’s decision to not address if the plurality framework from O’Connor was the correct one. Justice Scalia concurred in part and in the decision, claiming that confusion will arise in lower courts from the majority’s inability to state which framework is correct and its support of what he saw as the incorrect plurality approach.

The decision foreshadows the inevitable legal conflicts that will arise over privacy concerns created by the rise of new technologies. Although the majority opinion attempts to avoid addressing this issue, Justice Kennedy’s outline of arguments for and against privacy in this area establishes the basis for future privacy claims. However, Kennedy’s ability to settle the case without addressing the issue creates a precedent by which future courts may try to avoid this controversial question, thus creating an unsettled area of law.

Andrew Segna is a 2L at the Harvard Law School.