City of Ontario v. Quon

In 2003 Quon, his ex-wife, girlfriend[6][note 1] and another officer, Steve Trujillo, sued the city, the department, the police chief and Arch in Central California U.S. district court, Eastern Division, in Riverside.[note 2] Judge Stephen G. Larson[15] heard their claims of SCA violation, invasion of privacy and their constitutional protections against unreasonable search and seizure. Arch was granted summary judgment in its favor on the SCA claim since it was found to be a remote computing service, not subject to the statute's provisions.

The court ruled that Quon and his fellow plaintiffs had a reasonable expectation of privacy. It ordered a jury trial to determine whether the purpose of the audit was, as the department maintained, to find out whether it needed higher character limits or, as Quon claimed, to expose the personal nature of the texts. When the jury found in favor of the OPD, judgment was entered in favor of the defendants.

On appeal in 2008, a panel of two Ninth Circuit judges, Kim McLane Wardlaw and Harry Pregerson, along with Western Washington district judge Ronald B. Leighton. Wardlaw, writing for all three, noted that "[t]he recently minted standard of electronic communication via e-mails, text messages, and other means opens a new frontier in Fourth Amendment jurisprudence that has been little explored".[16] They agreed with the district court that Quon and his co-appellees had a reasonable expectation of privacy due to the assurances from Duke.

But they reversed since they found the search unreasonable as a matter of law. "The OPD surreptitiously reviewed messages that all parties reasonably believed were free from third-party review", Wardlaw wrote. The OPD could have obtained the information it sought in a number of less intrusive ways without viewing the content of the messages, such as warning Quon ahead of time or asking him to redact personal messages from an unreviewed transcript, she observed.[5]

The ruling was applauded by online privacy advocates. The Electronic Frontier Foundation called it a "tremendous victory...the Fourth Amendment applies to your communications online just as strongly as it does to your letters and packages".[17] Ars Technica said it "provide[d] an extensive space for workspace privacy".[18] George Washington University law professor Orin Kerr, a Fourth Amendment scholar who was cited in the opinion, called it "a noteworthy holding that I think is correct and very important" at the Volokh Conspiracy blawg.[19] It also overturned the summary judgment granted to Arch on the SCA claim, finding the company to be an electronic communications service and thus subject to stricter privacy requirements. The police chief was granted qualified immunity due to the lack of clearly established law in the area, while the city and department were denied their claim to statutory immunity. The SCA claims were remanded to district court.[5]

Judge Ikuta

The appellees petitioned for an en banc rehearing and were denied early in 2009. Six justices[note 3] on the circuit dissented. Sandra Segal Ikuta, writing for them, criticized her colleague for two errors. Ikuta insisted the department's policy, and California's Public Records Act, mooted any discretionary interpretation of the policy that Duke may have conveyed to Quon, thus denying him a reasonable expectation of privacy. She also reminded Wardlaw that the Supreme Court had several times[note 4] rejected the test on which she read Wardlaw's opinion relying on, that governments must use the least intrusive method of obtaining information available in order to protect employees' Fourth Amendment rights, a rule followed by seven other circuits as well.[3][20]

Judge Wardlaw wrote a rare concurrence with the order, criticizing the dissent for ignoring the facts of the case. "[N]o poet ever interpreted nature as freely as Judge Ikuta interprets the record on this appeal", she said. As a matter of law, it was the dissenters, not her, who had ignored O'Connor: "By stripping public employees of all rights to privacy regardless of the actual operational realities of each workplace, the dissent would have us create a far broader rule than Supreme Court precedent allows. The majority of our court properly rejected the dissenting judge's efforts to do so."[20]

Concurrent with the en banc petition, the appellees filed a certiorari petition to the Supreme Court, requesting it hear the case. They reiterated many of Ikuta's points, particularly her criticism of the panel's apparent adoption of the rejected least-intrusive-means test, and said it would be an "excellent vehicle" for revisiting O'Connor in light of new technology that complicated the workplace privacy issue.[21] A month later the California State Association of Counties and the League of California Cities filed an amicus curiae brief in support of the petition making the same arguments, but in particular saying the opinion mischaracterized the operational realities of the case.[22]

In opposition, Quon and the other respondents argued, as Wardlaw's concurrence had, that Ikuta and petitioners had greatly exaggerated the role that the less-intrusive-means test had played in the panel opinion, and that the facts of the case did not present any constitutional issues.[23] In a reply brief, the petitioners noted that other commentators on the case agreed[24] that it had mistakenly applied the less-intrusive-means test.[25]

Late that year, the Supreme Court granted certiorari to the city, OPD and Chief Scharf, making the case into Ontario v. Quon.[15][26] Kerr found this "an odd grant", since he had not expected the Supreme Court to find any issues making the case worth hearing. He suspected the justices were responding to a common issue with cases from the Ninth Circuit, where the minority of judges with politically conservative leanings had reacted vigorously to a perceived excess on the part of the circuit's dominant liberals.[27] Oral arguments were scheduled for April, with a decision expected in June.[28]

The parties' briefs reiterated their earlier arguments. "The City and Department should not be punished because a legitimate workplace search happened to turn up sexually explicit messages that plaintiffs need not and should not have sent on government-issued equipment in the first place", the city stated.[33] The respondents urged the Court to use the case to adopt the O'Connor plurality's "operational realities" standard, and set forth a more extensive response to the pettioners' claim that the text messages' status as public records was fatal to any reasonable expectation of privacy by any correspondent.[34]

Amici briefs were filed by several interested organizations for both sides. The city was joined by the federal government, represented by the Solicitor General's office,[35] the National League of Cities and other organizations representing municipal and county governments[36] and school-governance organizations led by the National School Boards Association.[37] All believed their ability to function effectively as government bodies would be impeded if the Ninth Circuit was upheld. The Los Angeles Times and other media organizations also urged reversal on the grounds that the public interest was served by as broad a definition of public records as possible, particularly where police operations were concerned.[38]

Weighing in on Quon's side was the AFL-CIO,[39] on behalf of those members of its constituent labor unions who were public employees. The New York Intellectual Property Law Association (NYIPLA), whose members litigate privacy claims, called on the Court to refrain from setting down any clear rules as technology, and social expectations of privacy related to it, were still evolving.[40] The Electronic Privacy Information Center's brief, signed by technical experts as well as lawyers, focused on the importance of data minimization to both security and privacy protection.[41] The Electronic Frontier Foundation (EFF), American Civil Liberties Union, Center for Democracy and Technology and Public Citizen filed a joint brief.[42] The conservative Rutherford Institute filed a motion requesting leave to file their amicus in favor of respondents since one withheld permission.[43]

Oral arguments were heard on April 19, 2010. Kent Richland, the city's lawyer, who had previously argued before the justices on behalf of Anna Nicole Smith in Marshall v. Marshall,[44] and Deputy Solicitor General Neal Katyal argued for petitioners; Dieter Dammeier, a former police officer himself,[45] argued for Quon and the respondents.[46]

Commentators, looking for signs as to how the Court would rule, felt the justices' questions suggested a narrow focus on the issue of whether the search was reasonable. Chief Justice John Roberts surprised some with his apparent strong sympathy for Quon's claims.[47][48] Orin Kerr noted the many questions asked about how the pagers and other technologies work,[49] and how that lack of familiarity reinforced, in his view, the need for caution, quoting from one of his own papers: "Judges who attempt to use the Fourth Amendment to craft broad regulatory rules covering new technologies run an unusually high risk of crafting rules based on incorrect assumptions of context and technological practice".[50]

During Richland's argument, the justices inquired closely about the city's contention that Quon had no reasonable expectation of privacy over his text messages. Justice Sotomayor asked Richland about a hypothetical scenario in which a sergeant knew that various officers engaged in sexually explicit texting with romantic partners and decided to look at the transcripts out of sheer salacity. "Does that officer have any expectation of privacy that his boss won't just listen in out of prurient interest?" Richland answered that the motive of the examiner should not affect a privacy expectation. "[W]hen the filthy-minded police chief listens in, it's a very bad thing, but it's not—it's not offending your right of privacy," concluded Justice Antonin Scalia.[51]

Justice Ruth Bader Ginsburg asked how the OPD could have examined the transcripts lawfully if the SCA forbade their release. Richland replied that the statute was complex and highly technical, and cited the Court's 1980 United States v. Payner[52] to the effect that "a complicated law ... simply cannot be the basis for a reasonable expectation of privacy".[53] He then turned over the rest of his time to Katyal.

During the Deputy Solicitor General's argument, another recent appointee, Justice Samuel Alito talked about the uncertainties of modern communications technology. "There isn't a well-established understanding about what is private and what isn't private. It's a little different from putting garbage out in front of your house,[note 5] which has happened for a long time". After Katyal agreed that these things were "in flux" and thus the Court should avoid making any broadly applicable rules on the first hearing, Chief Justice John Roberts speculated that that principle cut both ways and that perhaps the Court should at least say the Constitution applied in this case and make rules later.[54]

When Dammeier argued for the respondents, Ginsburg and Breyer pressed him on why it was unreasonable for the department to review the content of the messages if it wanted to find out if it needed a higher character limit. The lawyer reiterated the jury's finding and said "they didn't need to do that". In response to further questioning from Breyer, he restated the other ways Judge Wardlaw had suggested the department could have obtained the information without reviewing the messages themselves. Justice Sotomayor was skeptical. "You're relying on the very person you're auditing to do the audit for you. That doesn't seem either practical or business-wise."[55]

Justice John Paul Stevens brought up the issue of public review. His colleague Anthony Kennedy noted that attorneys challenging probable cause for a police raid would probably request the pager messages among other things, which Quon would certainly have been aware of, affecting his expectation of privacy. Dammeier responded that any mail he or anyone else sends would certainly be discoverable in litigation, but that possibility did not materially affect his expectation of privacy over it. He further reminded Scalia that in O'Connor the Court had found a reasonable expectation of privacy over the contents of a public employee's desk. Stevens pointed out that it was more likely that law enforcement communications would be reviewed by third parties than documents in doctors' desks. "I don't think we're taking away the government's ability to do searches under proper circumstances," Dammeier told him.[56]

Dammeier addressed the SCA and Richland's argument that it was too complex to bear on the reasonableness of Quon's expectation of privacy. "It certainly may be not the end-all to the question, but it should be a factor in determining whether or not there’s going to be an expectation of privacy". Scalia said he had not been aware of the statute, and asked if it was reasonable to assume that Quon did. "Petitioners make an argument that because there is this California Public Records Act, that that may diminish one's expectation of privacy", Dammeier said. "Certainly, if we're going to have that, then we should also be having the Stored Communications Act."[57]

The rest of Dammeier's argument was devoted to the issue of the other respondents' privacy expectations in communicating with Quon, after Sotomayor asked him if they could prevail even if Quon did not. Dammeier likened the department's actions to going to the post office to get letters sent to Quon instead of his house. Scalia pointed out that Quon could have obtained hard copies of the messages and circulated them himself. "[W]hen I get a piece of mail from somebody, I could do that as well", the lawyer replied, "but that doesn't mean that the government gets to go to the post office and get my mail before I get it". Richland replied in his rebuttal argument that "the truth is that all of these plaintiffs admitted that they knew that this was a department-issued pager, and this wasn't a post office".[58]

Kennedy began by setting forth the facts of the case, its legal history and the relevant laws and precedent. In the opinion's third section, he cautiously considered the question of Quon's privacy expectation. "The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear," he observed, referencing the Court's Olmstead v. United States decision in 1928,[59] in which it had permitted warrantless wiretapping on the grounds that the wiretaps did not actually enter the property of the bootleggers under investigation, and the Katz v. United States decision[60] which overruled it four decades later.[61]

In that latter case, he wrote, the Court had the "knowledge and experience" to conclude that there was a reasonable expectation of privacy in a telephone booth. "It is not so clear that courts at present are on so sure a ground". He elaborated on these uncertainties, referring to the amici briefs filed by the EFF and NYIPLA:

Prudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices.

Rapid changes in the dynamics of communication and information transmission are evident not just in the technology itself but in what society accepts as proper behavior. As one amici brief notes, many employers expect or at least tolerate personal use of such equipment by employees because it often increases worker efficiency. At present, it is uncertain how workplace norms, and the law's treatment of them, will evolve.

Even if the Court were certain that the O'Connor plurality's approach were the right one, the Court would have difficulty predicting how employees' privacy expectations will be shaped by those changes or the degree to which society will be prepared to recognize those expectations as reasonable.

For instance, he noted that the ready availability of cell phones made them potentially "necessary instruments for self-expression, even self-identification", strengthening a privacy claim. But at the same time they were affordable enough that anyone wanting one for such a purpose could buy their own rather than use one provided by an employer[61]

"A broad holding concerning employees' privacy expectations vis-à-vis employer-provided technological equipment might have implications for future cases that cannot be predicted," Kennedy wrote. "It is preferable to dispose of this case on narrower grounds." He accepted, for argument's sake, three points: that Quon had a reasonable expectation of privacy in his pager messages, that the review of them constituted a search and that the same principles governing a physical search of a public employee's workspace applied to electronic privacy.[61]

Justice Kennedy

On those grounds, the search had been reasonable under O'Connor. Its inception, to see whether the city needed a higher character limit, was legitimately work-related. Review of the content of the messages was an "efficient and expedient" way of achieving that goal, Kennedy wrote. The OPD's decision to limit the review to just two months' worth of messages, and redact those sent when Quon was off duty further bolstered its case.[61]

While Quon could have had some expectation of privacy, Kennedy continued, it could not have been enough to prevent a review of the messages. Not only had he been told of the possibility of an audit, but as a police officer "he would or should have known that his actions were likely to come under legal scrutiny, and that this might entail an analysis of his on-the-job communications". And, in particular, since the city had purchased pagers for SWAT team members to improve their performance in that capacity, it was reasonable to expect that the city might audit those pagers to assess the performance of both the units and the pagers in SWAT situations.[61]

Citing the same precedent cases that Ikuta had in her dissent from the rehearing denial, Kennedy said the Ninth Circuit erred in suggesting less intrusive means would have yielded the same information. After quoting from those cases to the effect that the text was not required and that letting judges apply it would make effective investigations almost impossible, he concluded that "[e]ven assuming there were ways that OPD could have performed the search that would have been less intrusive, it does not follow that the search as conducted was unreasonable."[61]

He could not find any legal authority or precedent for the respondents' argument that the SCA violation, which was not before the Court, rendered the search per se unconstitutional. To the contrary, he pointed to the Virginia v. Moore case[62] decided the previous term, in which evidence from a search conducted after an illegal arrest was ruled admissible since statutory violations did not inherently constitute Fourth Amendment violations. Nor would an SCA violation have rendered the actions of petitioners unconstitutional since they themselves did not violate it. "The otherwise reasonable search by OPD is not rendered unreasonable by the assumption that Arch Wireless violated the SCA by turning over the transcripts".[61]

Lastly, he ruled that the other respondents beside Quon had not suffered a violation of their privacy. The respondents had, Kennedy wrote, simply argued that a violation of Quon's privacy necessarily violated that of those he exchanged messages with, and did not make a case that they could have suffered a violation even if Quon had not. Since the Court had found that Quon's Fourth Amendment rights were not violated, it therefore had to hold that the others' were not, either.[61]

Stevens' brief concurrence approved of the Court's decision not to resolve the split in standards left by O'Connor. He noted that the facts of the case argued more strongly for the standard proposed by Justice Harry Blackmun in his dissent, which Stevens had joined. Blackmun had said the justices should adopt neither the plurality's "operational realities" standard nor Scalia's reasonable-in-the-private-sector alternative, but instead consider the circumstances of each particular search. In this case, he reiterated his line of reasoning from oral argument, that Quon's position as a police officer would have seriously limited his expectation of privacy.[63]

Scalia, too, began by addressing O'Connor. The intervening years had not changed his position that the plurality's position in that case was "standardless and unsupported." Nor, a footnote responding to Stevens added, was the approach of that case's dissent relevant unless it was overruled at some point. Applying the test from his concurrence in that case to the instant case, he wrote, "the proper threshold inquiry should be not whether the Fourth Amendment applies to messages on public employees' employer-issued pagers, but whether it applies in general to such messages on employer-issued pagers". But it was unnecessary to answer that question since he agreed with the majority that the search had been reasonable.[64]

Since, he felt, that was all the Court needed to say, the majority's "excursus on the complexity and consequences of answering ... that admittedly irrelevant threshold question" was similarly a waste of effort. "To whom do we owe an additional explanation for declining to decide an issue, once we have explained that it makes no difference?" He then excoriated the majority's "exaggerated" case for restraint:

Applying the Fourth Amendment to new technologies may sometimes be difficult, but when it is necessary to decide a case we have no choice. The Court's implication ... that where electronic privacy is concerned we should decide less than we otherwise would (that is, less than the principle of law necessary to resolve the case and guide private action)—or that we should hedge our bets by concocting case-specific standards or issuing opaque opinions—is in my view indefensible. The-times-they-are-a-changin' is a feeble excuse for disregard of duty.

It was "a heavy-handed hint" to lower courts and future litigants that was likely to encourage even more such suits in the future. "In short, in saying why it is not saying more, the Court says much more than it should."[64]

Justice Scalia

Lastly, he found it ironic that the Court had relied on the plurality standard in O'Connor, since its discussion would make it even harder to assess what the operating realities of the workplace were. "Any rule that requires evaluating whether a given gadget is a 'necessary instrumen[t] for self-expression, even self-identification,' on top of assessing the degree to which 'the law's treatment of [workplace norms has] evolve[d],' ... is (to put it mildly) unlikely to yield objective answers."[64]