By Dieter C. Dammeier and Michael A.
McGill Lackie, Dammeier & McGill

On June 17, 2010, the United States Supreme Court unanimously held that an employer did not violate the constitutional rights of its employees when it searched the electronic text messages sent between its employees using Department-issued equipment. The case was City of Ontario v. Quon, 2010 WL 2400087, and it involved an Ontario sergeant, Jeff Quon, who used his Department-issued text-message pager to communicate with other individuals, including another sergeant, Quon’s friends and Quon’s wife. After Quon exceeded the monthly character allotment for text messages, the Department reviewed his transcripts, which included personal messages to his friends and family. Quon believed that, in doing so, the Department violated his constitutional right to privacy and filed suit. To outsiders, the Supreme Court’s decision appeared sound, and Quon’s critics applauded the Supreme Court’s ruling as restoring justice and the right of government to run its affairs. However, what remained overlooked and what was flat-out ignored by the Supreme Court are the unique facts underlying Quon’s claims. After examining all of the facts, one can only conclude that the Supreme Court’s decision is just the latest in a line of cases leading inevitably to the eradication of the constitutional rights of public employees.

Quon was the SWAT sergeant, and in 2001, the Ontario Police Department obtained textmessage pagers for its SWAT members to better communicate for call-outs. The pagers were specifically given to SWAT members as a compromise in return for not compensating officers for being on call. Since the officers were expected to carry the pagers while off duty, they could be used for personal and official business. The only requirement the Police Department imposed was that if an officer exceeded the monthly character allotment, the officer would have to pay the overage charges. And so it went — officers exceeded the allotment and officers paid the overages. Most importantly, this practice was explicit, as Quon was repeatedly told that as long as he paid his overages, the Department would not review his text messages. By contrast, if an officer disputed the overages, believing that the messages were business related, the messages could be reviewed for a determination. Of course, the Police Department had no written policy that applied to the use of the pagers, only the aforementioned practice.

This all came to a screeching halt when Police Department management abruptly decided that it no longer wanted to collect overage checks. The chief of police ordered staff to obtain the text-message transcripts for two officers who exceeded the allotment that month. Quon was one of those officers.

The Police Department ordered the transcripts from the pager service provider, Arch Wireless, who willingly turned them over. Quon, who later was informed that his private messages had been reviewed, filed suit against the City of Ontario, its chief of police and Arch Wireless. Quon’s suit against the City and chief alleged a violation of his constitutional right to privacy. Quon’s suit against Arch Wireless alleged that it had violated the federal Stored Communications Act — a federal law aimed at protecting individuals’ electronic communications.

After years of discovery, numerous motions and a jury trial, the District Court dismissed Quon’s claim against Arch Wireless, finding that Arch Wireless met the definition of a “remote computing service,” and that it was legally entitled to release the transcripts to the Police Department. With regard to the City, the District Court found that Quon did have a legally protected “expectation of privacy,” but that the Police Department’s “need” to obtain the transcripts outweighed Quon’s privacy expectation. The decision was clearly wrong, and Quon appealed.

In 2008, the Ninth Circuit Court of Appeals reversed the District Court’s decision, finding that Arch Wireless was not a “remote computing service” but was instead clearly an “electronic communication service.” And, as an electronic communication service, Arch could not legally disclose the transcripts under federal law to the City of Ontario. The Ninth Circuit reversed the District Court and entered judgment in Quon’s favor, entitling Quon to damages, penalties and attorney fees. As for the City, the Ninth Circuit agreed with the District Court that Quon had an “expectation of privacy,” but held that the Police Department’s decision to review all of Quon’s text messages was excessively intrusive in light of the limited need for the information. The Ninth Circuit entered judgment in favor of Quon and against the City of Ontario and chief of police.

In 2009, the United States Supreme Court granted a review at the City’s request, but denied the same request from Arch Wireless. By doing so, the Supreme Court left undisturbed the Ninth Circuit’s ruling that Arch Wireless violated the Stored Communications Act. Fortunately for Sergeant Quon, the statutory monetary damages against Arch Wireless far exceeded any constitutional damages he would have been awarded from his suit against the City. Media coverage was intense, as this would be the Supreme Court’s first crack at electronic privacy rights in the workplace.

Although the Supreme Court’s June 17, 2010, decision purports to be a narrow ruling on the specific facts involved, a review of the decision proves otherwise. The court indicated it was avoiding the controversial issue in the case — whether a government employee has an expectation of privacy when using governmentissued equipment — and assumed that Quon did have an expectation of privacy. The court went on to hold, without any real analysis, that the review was not excessively intrusive, despite the above facts. Amazingly, the court ignored altogether the fact that Quon was specifically guaranteed that his messages would not be reviewed and his privacy would be maintained. The court ignored that the search only occurred because Arch Wireless violated federal law by handing over the transcripts to begin with.

More troubling is that the court seemed to indicate that Quon had a “limited privacy expectation” based upon the fact that he was a government employee using government-issued equipment. Although the court is less than clear on this point, it seems to indicate that public employees may have even fewer privacy rights than they already do by virtue of being public employees, when they use government-issued equipment. Moreover, even assuming that an employee can meet this increasing burden and show that they have an expectation of privacy, the Supreme Court’s decision all but gives employers complete carte blanche to search employees’ electronic communications whenever they wish, assuming they can come up with some legitimate reason. Invariably, the decision will embolden employers to invade constitutionally protected privacy interests for insignificant and trivial reasons. After all, if an employer can legally search Quon’s transcripts after guaranteeing him they wouldn’t, it would be hard to envision a search that would be illegal.

About the Authors: Dieter Dammeier and Michael A. McGill are partners with the law firm of Lackie, Dammeier & McGill, and are the attorneys who represented Sergeant Quon before the United States Supreme Court in this case.

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