Dr. Martha McCarthy

The United States Supreme Court recently delivered a significant decision in Ontario v. Quon, holding that a public employer could read employees' text messages on a government-issued pager. In this case, the city of Ontario, Calif. issued pagers to police officers, including Quon. The contract with the provider included a character limit on text messages, and the city had to pay a surcharge if any employee exceeded the monthly character allowance. The city alerted employees that it reserved the right to monitor their text messages, similar to e-mail on city computers, and that employees have no expectation of privacy or confidentiality when using city equipment.

Quon exceeded the character limit for several months, and he agreed to pay the extra fees himself. After he continued to exceed the limit for additional months, city officials decided to investigate whether the character limits should be raised to avoid employees incurring expenses for work-related text messages. The city thus contacted the pager provider and obtained transcripts of Quon's and another employee's text messages for two months in which each of them had exceeded the character limit. This revealed that most of the text messages sent and received on Quon's pager during work hours were not work-related, and some were sexually explicit. Following an investigation by the internal affairs unit, Quon was disciplined for violating the police department's rules.

Quon alleged that the city's action abridged the Fourth Amendment's prohibition against unreasonable searches. The Ninth Circuit Court of Appeals agreed with Quon, but the Supreme Court reversed, holding that the city's review of employees' text messages on a city-issued pager was constitutionally reasonable. The Court concluded that the city had a legitimate interest in assessing whether the contractual character limitation was too low. Moreover, all employees had been warned that their pagers were to be used for work purposes and that the transcripts could be reviewed. The Court concluded that the city's actions were reasonable and did not violate the Fourth Amendment.

The Supreme Court's holding is not surprising, given the circumstances of this case. However, it is noteworthy that the Court declined to establish general principles governing electronic privacy issues beyond the narrow facts of this case, voicing reluctance to set a precedent that might be difficult to apply. The Court recognized that rapid changes in the technological landscape have created uncertainty in workplace norms as well as in the law's treatment of such norms. Thus, the Court concluded that it would not be prudent to articulate broad standards to apply to government-supplied communication devices. This decision disappointed those who were hoping the Court would illuminate constitutional principles relating to electronic privacy in the workplace. It left employers and employees in government agencies, including school districts, without clear guidance regarding the law governing electronic expression, which means more litigation can be expected.