Fourth Amendment Does Not Violate Police-Department's Search of Employee Text Messages

In a previous blog article posted January 8, 2010, Does the Fourth Amendment Protect Text Messages?, we reported that the United States Supreme Court granted a petition for certiorari in City of Ontario v. Quon, a Ninth Circuit Court of Appeals case in which the Circuit Court held that Police Sergeant Quon's Fourth Amendment rights were violated when sexually explicit text messages sent to and from his department-owned pager were accessed by the City.

On June 17, 2010, the United States Supreme Court reversed the Ninth Circuit Court of Appeals' decision and held that the City of Ontario did not violate Quon's Fourth Amendment rights by conducting a search of his text messages. In its decision, the Court stopped short of deciding whether Quon actually had a reasonable expectation of privacy in his text messages.

To keep its holding narrow and avoid far-reaching implications, the Court assumed Quon had a privacy expectation and that the Fourth Amendment applied. Despite this assumption, the Court held that Quon's privacy rights were not violated because the search was justified by a legitimate work-related reason, and the search was within scope. The City's work-related reason was to determine whether the character limit in its wireless contract was adequate to meet its needs when the City noted repeated overages. Specifically, the City wanted to know if officers were being forced to pay out of their own pockets for work-related expenses, or if the City was paying for extensive personal communications. With respect to Quon, the search was not found to be excessive because his message transcripts were deemed an efficient and expedient way to determine which factor caused his overages. Although Quon occasionally exceeded his monthly allotment, transcripts were only reviewed for two months and all messages sent while off-duty were redacted.

The Court discussed the City of Ontario's policy that employees had no expectation of privacy in messages transmitted on department-owned pagers, however, it also stated that a determination would need to be made whether that policy was overridden by management when arrangements were made for officers to pay for their overages rather than having their text messages audited. The Court did not answer this question because the case was resolved the case on other grounds. Although private employers are not bound by the Fourth Amendment, this is a reminder to all employers that employment policies, even well-drafted ones, can be undermined and even become ineffective when not properly enforced.

Author: Ann Eberts

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