Supreme Court to Hear Argument in Employee "Sexting" Case

Originally published April 12, 2010

On Monday, April 19, the United States Supreme Court will hear oral argument in City of Ontario v. Quon, a case addressing the right of a public employer to review employee text messages on a pager purchased by the public employer for employee business use. Although the defendant in the case is a police department, the Court's decision will address the rights of all public employers, including schools districts.

The decision on appeal is from a three-judge panel of the Ninth Circuit Court of Appeals, which has jurisdiction over 11 western states. At issue is the decision by a California police department to audit the pager of one of its police officers, Jeff Quon, after he repeatedly exceeded a monthly character limit on the pager. The audit, which aimed to determine if the majority of the text messages on the pager were for personal or professional use, uncovered that only 57 of the more than 450 messages that Quon had sent the previous month were professional, and that some of the personal messages were sexually explicit. The Supreme Court will address whether the search violated the Fourth Amendment right against unreasonable searches of Quon and the third parties who participated in the text messaging with him. In reaching its decision, the Court will address whether Quon and the third party participants had an expectation of privacy and, if they did, whether the employer's search was reasonable in light of that expectation of privacy.

The Ninth Circuit panel held that Quon had a reasonable expectation of privacy that his text messages would not be reviewed, even though

• the police department had a formal policy that city-owned technology was to be used for business use only;
• the policy notified employees that their access to Internet and e-mail on such technology was not confidential and was subject to periodic review by the police department; and
• Quon signed a waiver indicating that he was aware of the formal policy and that he had "no expectation of privacy or confidentiality" when using his pager.

The key fact for the Ninth Circuit panel was that a supervisor at the police department told employees, including Quon, that if they paid for any overage fees, the police department would not review the substance of their text messages. The Ninth Circuit panel also held that the third parties who participated in the text messaging with Quon had a reasonable expectation that the messages would not be reviewed without consent by Quon or them.

The Ninth Circuit panel also held that although there were reasonable grounds for conducting the search, other methods—such as warning Quon that he would be audited the next month and that he should not use his pager for personal purposes, or asking him to document the number of personal versus professional pages he had used the month before—would have been just as effective as the search.

The full Ninth Circuit Court of Appeals was asked to review the panel decision, but declined to review the case. Seven justices dissented, however, expressing concern that the decision made it "exceptionally difficult for public employers to go about the business of running government offices." Specifically, the case raises concerns that one supervisor can create an expectation of privacy for employees, even where there is a formal policy explicitly limiting that expectation.

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