Doculabs

The Supreme Court has ruled: Officer Quon’s right to privacy was not violated when his employer, the City of Ontario, California, reviewed a transcript of the text messages on his Police Department work pager. And the ruling was unanimous – a rarity with this Court. But it was also very narrow, which doesn’t help organizations that are trying to define company policies to cover employees’ use of new technologies.

The case turned upon the question of whether the employer’s search was reasonable. The Court ruled that the search was reasonable, because the City’s computer policy was clearly defined and because the intent of the search itself was work-related (i.e. to verify the adequacy of the Department’s data plan for pagers), as opposed to investigatory (e.g. to find out whether officers were using the pagers to play games). For details on the case, City of Ontario v. Quon, see my previous post, “What’s a ‘Reasonable’ Expectation of Privacy for Work-related Mobile Devices?”.

But the Court’s opinion did disclose a few interesting details that had not emerged in oral arguments.

First, only Quon and one other officer in the entire Police Department consistently failed to stay within the character limit of their data plan (which was why the Police Department selected these two officers’ messages to be audited in the first place).

But then there were the numbers. When the Department’s internal affairs unit reviewed the transcript of Quon’s text messages, it looked at only those messages sent or received during work hours. Even so, they found that in a single month, Quon sent or received 456 messages during work hours, of which no more than 57 were related to police business. On an average work day, they calculated he sent or received 28 messages, of which only three were work-related.

Finally, there was the “sexually explicit” nature of some of the non-work-related messages. (As the opinion dryly notes, “Quon was allegedly disciplined.”)

It all adds up to what (I think) most of us would agree is a pretty egregious violation of an employer-defined policy for the use of employer-owned equipment. But the Court’s ruling was narrow and case-specific. Any employer in the private sector looking to this decision for guidance in privacy issues relating to employee use of new communication technology will just have to wait for future cases to arrive on the Court’s docket, as this decision broke no new ground with respect to Fourth Amendment rights and how they might apply to the use of new technologies.

As Justice Anthony Kennedy wrote in the unanimous opinion, “The Court must proceed with care when considering the whole concept of privacy expectations in communications made on electronic equipment owned by a government employer.” (You can read the complete text of the opinion here on the Supreme Court’s website.) He continued, “The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear.”

Kennedy went on to comment that it’s not just the technology and communications capabilities that are changing, but “what society accepts as proper behavior”; e.g. the many companies that allow their employees to make personal use of these devices or other equipment because it makes them more efficient at their jobs.

Bottom line, the decision in this case amounts to only a preliminary definition of the Fourth Amendment rights that public employees can expect in the digital era.

But Justice Antonin Scalia weighed in on the Court’s reluctance to take a broader stand. In his concurring opinion, he wrote: “Applying the Fourth Amendment to new technologies may sometimes be difficult, but when it is necessary to decide a case we have no choice. The Court’s implication…that where electronic privacy is concerned we should decide less than we otherwise would …or that we should hedge our bets by concocting case-specific standards or issuing opaque opinions—is in my view indefensible. The-times-they-are-a-changin’ is a feeble excuse for disregard of duty.”

Way to go, Nino!

But as narrow as this decision was, I’d be willing to bet that employers, whether in the public or private sector, are going to regard the case as an object lesson in what can happen if they haven’t taken the care to explicitly define their policies for their employees’ use of these communication devices, and if they don’t regularly revisit those policies to ensure that they address all such devices in use among their employees. This case leaves a lot of room for future decisions. I don’t know of many organizations that are all that eager to be named as the petitioner in the next test case as these issues make their way through the courts.