Quon v. Arch Wireless Operating Co., Inc.
27 I.E.R. Cas. (BNA) 1377, 2008 U.S. App. LEXIS 12766, 529 F.3d 892 (2008)
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Rule of Law:
A public employee has a reasonable expectation of privacy in the content of text messages on an employer-issued device when an informal policy or practice allows for personal use and suggests messages will not be audited. A subsequent search of those messages by the employer is unreasonable in scope if it is excessively intrusive and less intrusive means of achieving the work-related objective were available.
Facts:
- The City of Ontario provided police officers, including Sergeant Jeff Quon, with two-way pagers for text messaging under a contract with Arch Wireless.
- The City had a formal Computer Usage Policy stating that City systems were for business use only and that users should have no expectation of privacy, which Quon had acknowledged in writing.
- Lieutenant Steve Duke, who managed the pager contract, orally informed officers that the pager messages were covered by the City's monitoring policy.
- The pager plan had a character limit, and an informal practice developed where Lieutenant Duke allowed employees who exceeded the limit to pay for the overages themselves, telling Quon that if he paid, his messages would not be audited.
- On several occasions, Quon exceeded the character limit, paid the City for the overages, and his messages were not reviewed.
- In August 2002, after Quon again exceeded the limit, Police Chief Lloyd Scharf, frustrated with the recurring overages, ordered an audit of the pager transcripts to determine if the character limit was too low for work-related use or if the pagers were being used for personal matters.
- At the City's request, Arch Wireless provided transcripts of all of Quon's text messages from a two-month period.
- Chief Scharf and other police officials reviewed the transcripts, which revealed many personal and sexually explicit messages exchanged between Quon, his wife, and two other police department employees.
Procedural Posture:
- Jeff Quon, along with others who received his texts (Appellants), sued the City of Ontario, its police department, Chief Scharf (Appellees), and Arch Wireless in the U.S. District Court for the Central District of California, alleging violations of the Stored Communications Act (SCA) and the Fourth Amendment.
- On summary judgment, the district court ruled that Arch Wireless, as a 'remote computing service,' had not violated the SCA by providing the transcripts to its 'subscriber,' the City.
- The district court found that Quon had a reasonable expectation of privacy due to the informal policy, but held that the reasonableness of the search depended on Chief Scharf's motive, which was a disputed issue of fact.
- A jury trial was held solely on the issue of Chief Scharf's intent. The jury found that his purpose was to determine the efficacy of the character limits, a non-investigatory work-related purpose.
- Based on the jury's verdict, the district court entered judgment in favor of the City, the department, and Chief Scharf, finding the search reasonable.
- Quon and the other plaintiffs (Appellants) appealed the district court's judgment to the U.S. Court of Appeals for the Ninth Circuit.
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Issue:
Does a public employer's review of an employee's text messages on an employer-issued device violate the employee's Fourth Amendment rights when a formal policy permits monitoring but an informal practice suggests privacy will be respected if the employee pays for overages?
Opinions:
Majority - Wardlaw, Circuit Judge
Yes, the public employer's review of the employee's text messages violated the employee's Fourth Amendment rights. A public employee's reasonable expectation of privacy is determined not just by formal written policies, but by the 'operational realities of the workplace.' Here, Lieutenant Duke’s informal policy of not auditing messages if overages were paid for created a reasonable expectation of privacy for Sergeant Quon, despite the City's formal policy to the contrary. While the city's purpose for the search—to determine the efficacy of the character limit—was justified at its inception, the search itself was unreasonable in scope. The department's decision to read every message was excessively intrusive when less intrusive means were available, such as asking Quon to redact personal messages or warning him that future messages would be monitored. Additionally, the court held that Arch Wireless violated the Stored Communications Act (SCA) because it was an 'electronic communication service' (ECS), which is prohibited from disclosing stored communications to anyone other than an addressee or intended recipient; the City was merely a 'subscriber,' not an intended recipient.
Analysis:
This decision significantly extended Fourth Amendment workplace privacy protections into the realm of modern electronic communications. It established that the 'operational realities' of a workplace, including informal customs and a supervisor's assurances, can override a formal, written monitoring policy to create a reasonable expectation of privacy. The ruling also emphasized the importance of the scope of a workplace search, requiring employers to use the least intrusive means reasonably available to achieve a legitimate work-related purpose. This holding places a higher burden on public employers to tailor their investigations narrowly when intruding upon areas where employees have a reasonable expectation of privacy.
