Legal Protection of Text-messaging Privacy - Case Study Example

JUSTICE ROBERTS announced the judgment of the Court, and delivered an opinion in which JUSTICE THOMAS, JUSTICE ALITO, JUSTICE KENNEDY and JUSTICE SCALIA join. This case is heard on an appeal from the Ninth Circuit Court of Appeals. This case arises out of the review of text messages sent and received by Sergeant Jeff Quon (“Appellant”) of the City of Ontarios SWAT team. The questions presented from this case are as follows: 1) Whether Appellant had a reasonable expectation of privacy in his text messages and 2) whether the rights of Appellant and those whom Appellant texted were violated under the Fourth Amendment to the United States Constitution and Article I, Section 1 of the California Constitution. Arch Wireless contracted with the City of Ontario to provide wireless text messaging services. The City of Ontario received 22 pagers from Arch Wireless in late 2001 and 2002. The method by which the text message are sent are as follows: the text message leaves the originating pager through a radio frequency transmission, which is then received by any one of many receiving stations, owned by Arch Wireless. The message is then entered into the Arch Wireless computer network by wire transmission or satellite. Once the message is in the Arch Wireless computer network, it is then relayed to the Arch Wireless computer server, where it is archived and stored for up to 72 hours, until the receiving pager can receive the text message. Once the message is archived and delivered in an Arch Wireless service area, the recipient pager is ready to receive delivery, at which point the Arch Wireless server retrieves the message and sends it to a transmitting station close to the recipient pager. Arch Wireless owns the transmitting stations. The City of Ontario, while having no official policy regarding text-messaging by use of its pagers, did not have a general policy regarding computer usage, internet and e-mail, and this policy is that “[t]he use of City-owned computers and all associated equipment, software, programs, networks, Internet, e-mail and other systems operating on these computers is limited to City of Ontario related business. The use of these tools for personal benefit is a significant violation of the City of Ontario Policy.” In addition, the City of Ontario reserved the right to review all Internet sites that the employees visited and log all e-mail and Internet use, with and without notice. Access to the Internet and e-mail was not confidential, and all information produced is considered City property. Appellant signed an “Employee Acknowledgement” in 2000 in which he acknowledged that he had read the company policy regarding computer usage, Internet and E-mail. On April 18, 2002, Appellant attended a meeting with Lieutenant Steve Duke, in which all were informed that the use of the pagers were to be treated the same as e-mail, and that the pager messages would be potentially audited. Appellant was vaguely able to recall attending such a meeting, but did not remember pagers being addressed at this meeting. However, the City did not have an official policy regarding the pagers use. The City did have an informal policy regarding overages, in that all employees were allotted 25,000 characters, after which the employee was responsible. Lieutenant Duke was responsible for collecting for the overages. After Appellant went over his allotted 25,000 characters, Lieutenant Duke approached him and informed him that he, Appellant, would be responsible for overages unless he could show that the overages were work-related. He advised Appellant that Appellant could either pay the overage charge or have his messages audited to determine how many messages were work-related. However, as Appellant habitually went over his 25,000 character limit, Lieutenant Duke grew tired of his role as bill-collector, and transcripts from Appellants pager and others were requested to determine if the pagers were used for work purposes or personal purposes, as the City would increase its 25,000 character limit if the employees truly needed the pagers for work-related purposes. Auditing showed that the messages Appellant had sent were sexually explicit, and these messages were directed to and received from the other Appellants. The dispositive questions are whether Appellant s rights were violated under the Fourth Amendments prohibition of unreasonable searches and seizures, and whether Appellant had a reasonable expectation of privacy in his text messages. This court holds that Appellant s rights were not violated under the Fourth Amendment and that Appellant did not have a reasonable expectation of privacy in his text messages. We granted certioari, 474 U.S. 1018 (1985) and now reverse and remand. II The Fourth Amendment to the United States Constitution protects “the rights of the people to be secure in their persons, houses, paper, and effects, against unreasonable searches and seizures.” OConnor v. Ortega, 480 U.S. 709 (1987). Established case law has determined that the Fourth Amendment is implicated only when the search violates “an expectation of privacy that society is prepared to accept as reasonable.” United States v. Jacobsen, 466 U.S. 109, 113 (1984). In establishing whether an individual has a reasonable expectation of privacy, this Court has given weight to factors such as “the intention of the Framers of the Fourth Amendment, the uses to which the individual has put a location, and our societal understanding that certain areas deserve the most scrupulous protection from government invasion.” Oliver v. United States, 466 U.S. 170, 178 (1984). In OConnor v. Ortega, this Court decided that the Fourth Amendments prohibition against unreasonable searches and seizures applied to public employees as well as private employees. However, this Court also decided that this rule is not absolute and sacrosanct, but would be applied on a case by case basis. This Court acknowledged in Ortega that “The operational realities of the workplace...may make some employees expectations of privacy unreasonable,” and that “[p]ublic employees expectations of privacy in their offices, desks, and file cabinets...may be reduced by virtue of actual office practices and procedures, or by legitimate regulation.” 480 U.S. at 710. In finding that Dr. Ortega did enjoy a reasonable expectation of privacy in Ortega, we noted that, among other factors, the Hospital in that case had not “established any reasonable regulation or policy discouraging employees such as Dr. Ortega from storing personal papers and effects in their desks or cabinet.” 480 U.S. at 711. In this case, Appellant was informed by a written policy that the Employees use of the computers, Internet and E-mail would be subject to periodic review by the City without notice, and explicitly informed users that they should have no expectation of privacy when using these resources. This policy if reasonable, for employees personal use of company resources such as E-mail and the Internet is a significant, widespread, problem. Appellant was informed of this policy in 2000 and signed an acknowledgement that he understood these policies. He therefore could not have an expectation of privacy in his Internet and E-mail usage. The question is whether Appellant was sufficiently informed that he would also not have a reasonable expectation of privacy in his text communications. The City did not have a formal policy regarding text communications, as it did for the other electronic resources. In assessing this question, this Court can use two tacts. One is whether Appellant was verbally informed by Lieutenant Duke that the use of the pagers would be treated the same as E-mail. Lieutenant Duke insists that Appellant was informed as such in a meeting. Appellant states that he does not remember pagers being addressed at this meeting, although he “vaguely recalls” the meeting occurring. The other tact is whether a reasonable person would conclude that the policy regarding electronic communication could and would be extrapolated to the use of text messages that were sent on the job and through devices that were employer-supplied. In the first scenario, the question is whether Lieutenant Duke informed Appellant and others that the pagers would be treated as other electronic communication and monitored. Lieutenant Duke claimed that this meeting occurred, that the employees were explicitly informed about the usage of employer-supplied pagers, and that Appellant was in attendance at this meeting. Appellant stated that he only vaguely recalled attending this meeting and did not recall that the usage of pagers was addressed at this meeting. Without more, perhaps meetings minutes or other witnesses who could testify that the usage of pagers was or was not addressed, or a jury trial on this matter, this Court is forced to decide who is more credible, which would be impossible to discern under the facts. This is a dispositive area of inquiry, one that was never before a trier of fact. If Appellant was explicitly informed that the use of pagers would be treated the same as electronic communication, then any reasonable expectation of privacy would be destroyed. Therefore, the District Court is ordered to remand this issue to a trier of fact. The other tact is whether a reasonable employee would conclude that the use of pagers would be treated the same as electronic communication, in the absence of a formal policy governing such. This Court holds that a reasonable employee would conclude that these pagers would be treated the same as other electronic communication. The City owned these pagers, as the evidence shows that the City received the pagers from Arch Wireless, and distributed these pagers to its employees, including Appellant. Employees were on notice that communication on other City-owned devices, such as computers, Internet and E-mail, would be subject to monitoring and auditing, and that the City considers all such communication on these other devices to be property of the City. A reasonable employee should be able to extrapolate the restrictions and prohibitions regarding other electronic communications to the use of the pagers. The pagers are employer-owned, as were the computers, Internet and E-mail. A reasonable employee should be able to discern that the abuse of any company property on company time would be verboten, and that the employer would have a right to determine if the company property is used for personal use, which would necessarily mean that the company would have the right to audit these communications. A reasonable employee would understand this. The rationale for prohibiting personal usage of E-mail and Internet would logically be extended to the use of the pagers – just as the City does not want employees accessing pornography or even Facebook on company time, therefore the electronic usage is reasonably monitored, so the City also does not want employees sending personal text messages during company time, let alone sexually explicit text messages, as were sent by Appellant. A reasonable employee would understand the rationale behind monitoring the electronic usage, and should be able to understand that the rationale would extend to their text message usage. Another point of contention is what Lt. Duke told Appellant about the overages, and whether Lt. Duke explicitly told Appellant that he would audit him because of the overages, or if he told Appellant that Appellant had the choice between paying the overages or being audited. Appellants apparent understanding of the situation was that he would not be subject to an audit if he paid the overages. Sgt. McMahons understanding of the situation, according to Sgt. McMahons interview with Lt. Duke, was that Lt. Duke explicitly told Appellant that Appellants pagers could be audited. Lt. Dukes testimony in deposition was that he did not want to determine if the use of the pagers was personal or business, and that he was only interested in collecting for the overages. So, there is, once again, confusion as to what was said to whom. Therefore, we remand with instructions to the trier of fact to make a final determination on this situation. There was one issue that was tried before the trier of fact and that is the motivation of Chief Scharf in ordering the transcripts of the pagers. Chief Scharf claimed that he needed the transcripts to determine if the overages were business-related, and, if they were determined to be such, he would increase the 25,000 character limit for the employees. The other interpretation of his motives would be that he requested these transcripts in an effort to uncover misconduct. The district court found that this was a genuine issue of material fact, in that, if Chief Scharfs motivation was to ferret out employee misconduct, this would be considered an unreasonable search and seizure. However, if Chief Scharfs motivation was to merely determine if the employees had genuine business reasons for the high overages, therefore the employees should be entitled to a larger allottment of characters without worrying about overages, this would not constitute an unreasonable search and seizure. The district court then held a jury trial on this single issue of Chief Scharfs intent. The jury decided that Chief Scharfs intent was to determine the reasonableness of the character limit, and the district court absolved them of liability for the search. As this issue was tried before the trier of fact, this Court will not disturb this finding, and concludes that Chief Scharfs intent was to determine the efficacy of the character limit. As the facts are unclear on this issue, this Court cannot determine if Appellants reasonable expectation of privacy was violated in this circumstance. We therefore reverse and remand, with instructions to the trier of fact to determine the factual issues presented by this Court, to determine if Appellants reasonable expectation of privacy was violated. III This Court now turns to issue of whether the search was reasonable, regardless of whether the Appellants reasonable expectation of privacy was violated. This court has previously determined that “the standard of reasonableness applicable to a particular class of searches requires balancing the nature and quality of the intrusion on the individuals Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.” 480 U.S. at 712; United States v. Place, 462 U.S. 696, 703 (1983). In Ortega, this Court extrapolated the Fourth Amendment to public employer situation, stating that “in the case of searches conducted by a public employer, we must balance the invasion...against the governments need for supervision, control, and the efficient operation of the workplace.” 480 U.S. at 712. In Ortega this Court found that government agencies provide many services, and that “public employers have an interest in ensuring that their agencies operated in an effective and efficient manner, and the work of these agencies inevitably suffers from the inefficiency, incompetence, mismanagement, or other work-related misfeasance of its employees. Indeed, in many cases, public employees are entrusted with tremendous responsibility, and the consequences of their misconduct or incompetence to both the agency and the public interest can be severe.” 480 U.S. at 713. Because of this, the Ortega Court concluded that “public employers have a direct and overriding interest in ensuring that the work of the agency is conducted in a proper and efficient manner, and that [t]he delay in correcting the employee misconduct caused by the need for probable cause rather than reasonable suspicion will be translated into tangible and often irreparable damage to the agencys work, and ultimately to the public interest.” 480 U.S. at 713. Further, we established that the standard of reasonableness, as opposed to probable cause, would be enough to justify a “public employer intrusion on the constitutionally protected privacy interests of government employees for non-investigatory, work-related purposes, as well as for investigations of work-related misconduct.” 480 U.S. at 714. The City of Ontario has the public interest of ensuring that its employees do not act inefficiently or mismanage their time or the Citys resources. Taxpayers are paying for Appellants salary, as they are also ultimately paying for the pagers. Appellant was abusing his privileges on these taxpayer-supplied devices. The City had grounds for reasonable suspicion that this was the case, as Appellant habitually went over his 25,000 character limit. In fact, many other employees were going over this limit. It would seem to this Court that a 25,000 character limit in text-messaging is a generous one, and that, if employees were using these pagers strictly for business-related purposes they should be able to stay within this limit. That so many employees were habitually going over the limit would raise the reasonable suspicion that these pagers were not being used strictly for business purposes, and, in light of the dicta in Ortega, that public employers have the right to ensure that the taxpayers dollars are not being mismanaged by inefficient employees, Appellants employer had the right to examine these pagers for evidence of employee malfeasance, as personal use of publicly supplied pagers would be. In Ortega, this Court established that reasonableness, not probable cause, was the standard for public employer searches. Accordingly, the judgment of the Ninth Circuit Court of Appeals is reversed, and this case is remanded to the court for further proceedings consistent with this opinion. It is so ordered. Read More