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Read the case of City of Ontario v

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Read the case of City of Ontario v. Quon in Chapter 14.  Write a 1-2 paragraph summary and answer case questions 1, 2 and 3 only at the end of the case.

The case study should have 2 sections:

Summary: Write a 1-2 paragraph summary of the key facts and legal issues in the case.

Case Questions: Answer the listed questions - 1, 2 and 3 only, following the case using the facts of the case and the concepts introduced in the textbook. You must also clearly explain your reasoning. Be sure to number your responses.

  APA format is required. This includes APA citation to information from the textbook within the text of the summary and answers to the questions in addition to a separate reference page.

Submit the summary of the case and answers to the questions as a Word document attachment.

 Note: The paper that is submitted is the paper that will be graded. Be sure to double check your submission to ensure that you have submitted the correct file. Papers that are resubmitted after the deadline will be considered late.

 

City of Ontario v. Quon 130 S. Ct. 2619 (2010)

The City of Ontario, California, acquired pagers that could send and receive text messages. The pagers were issued to Quon and other police officers, who were told that the city-provided service plan included a monthly limit on the number of characters sent and received each month. Overages had to be paid by the employees. When the employees exceeded their monthly limits for several months, the police chief sought to determine if the overages being paid by the police officers were for city- related business or personal messages. Based on transcripts sent by the service provider, the police chief discovered that Quon had been sending sexually explicit messages. He also learned that few of Quon’s on-duty messages were related to police business, and he was disciplined. Quon and other officers sued, alleging violations of the Fourth Amendment search and seizure provisions.

The trial court ruled that Quon and the police officers had an expectation of privacy in the content of the messages, but it dismissed the Fourth Amendment claims because the jury found that the police chief’s actions were motivated by the legitimate reason of determining whether the officers were unfairly paying for work-related overages. The Ninth Circuit, however, reversed, concluding that the police chief’s motives were not determinative because he could have used less intrusive tactics than an audit of the messages. The U.S. Supreme Court reversed, holding that the search of the text messages was not excessive in scope.

Kennedy, J.

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Though the case touches issues of far-reaching significance, the Court concludes it can be resolved by settled principles determining when a search is reasonable.

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It is well settled that the Fourth Amendment’s protection extends beyond the sphere of criminal investigations. Camara v. Municipal Court of City and County of San Francisco. “The Amendment guarantees the privacy, dignity, and security of persons against certain arbitrary and invasive acts by officers of the Government,” without regard to whether the government actor is investigating

 

crime or performing another function. The Fourth Amendment applies as well when the Government acts in its capacity as an employer. Treasury Employees v. Von Raab.

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Before turning to the reasonableness of the search, it is instructive to note the parties’ disagreement over whether Quon had a reasonable expectation of privacy. The record does establish that OPD, at the outset, made it clear that pager messages were not considered private. The City’s Computer Policy stated that “[u]sers should have no expectation of privacy or confidentiality when using” City computers. Chief Scharf’s memo and Duke’s statements made clear that this official policy extended to text messaging. The disagreement, at least as respondents see the case, is over whether Duke’s later statements overrode the official policy. Respondents contend that because Duke told Quon that an audit would be unnecessary if Quon paid for the overage, Quon reasonably could expect that the contents of his messages would remain private.

At this point, were we to assume that inquiry into

“operational realities” were called for, . . . it would

be necessary to ask whether Duke’s statements could be taken as announcing a change in OPD policy, and if so, whether he had, in fact or appearance, the authority to make such a change and to guarantee the privacy of text messaging. It would also be necessary to consider whether a review of messages sent on police pagers, particularly those sent while officers are on duty, might be justified for other reasons, including performance evaluations, litigation concerning the lawfulness of police actions, and perhaps compliance with state open records laws. These matters would all bear on the legitimacy of an employee’s privacy expectation.

The Court must proceed with care when considering the whole concept of privacy expectations in communications made on electronic equipment owned by a government employer. The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear. See, e.g., Olmstead v. United States, overruled by Katz v. United States. In Katz, the Court relied on its own knowledge and experience to conclude that there is a reasonable expectation of privacy in a telephone booth. It is not so clear that courts at present are on so sure a ground. 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. Another amicus points out that the law is beginning to respond to these developments, as some States have recently passed statutes requiring employers to notify employees when monitoring their electronic communications. 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. Cell phone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self-identification. That might strengthen the case for an expectation of privacy. On the other hand, the ubiquity of those devices has made them generally affordable, so one could counter that employees who need cell phones or similar devices for personal matters can purchase and pay for their own. And employer policies concerning communications will of course shape the reasonable expectations of their employees, especially to the extent that such policies are clearly communicated.

A broad holding concerning employees’ privacy expectations vis- à-vis employer-provided technological equipment might have implications for future cases that cannot be predicted. It is preferable to dispose of this case on narrower grounds. For present purposes we assume several propositions arguendo: First, Quon had a reasonable expectation of privacy in the text messages sent on the pager provided to him by the City; second, petitioners’ review of the transcript constituted a search within the meaning of the Fourth Amendment; and third, the principles applicable to a government employer’s search of an employee’s physical office apply with at least the same force when the employer intrudes on the employee’s privacy in the electronic sphere.

Even if Quon had a reasonable expectation of privacy in his text messages, petitioners did not necessarily violate the Fourth Amendment by obtaining and reviewing the transcripts. Although as a general matter, warrantless searches “are per se unreasonable under the Fourth Amendment,” there are “a few specifically established and well-delineated exceptions” to that general rule . . . The Court has held that the “special needs” of the workplace justify one such exception.

Under the approach of the O’Connor plurality, when conducted for a “noninvestigatory, work-related purpos[e]” or for the “investigatio[n] of work-related misconduct,” a government employer’s warrantless search is reasonable if it is “justified at its inception” and if “the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of” the circumstances giving rise to the search. The search here satisfied the standard of the O’Connor plurality and was reasonable under that approach.

The search was justified at its inception because there were “reasonable grounds for suspecting that the search [was] necessary for a noninvestigatory work-related purpose.” As a jury found, Chief Scharf ordered the search in order to determine whether the character limit on the City’s contract with Arch Wireless was sufficient to meet the City’s needs. This was, as

the Ninth Circuit noted, a “legitimate work-related

rationale.” The City and OPD had a legitimate interest in ensuring that employees were not being forced to pay out of their own pockets for work-related expenses, or on the other hand that the City was not paying for extensive personal communications.

As for the scope of the search, reviewing the transcripts was reasonable because it was an efficient and expedient way to determine whether Quon’s overages were the result of work-related messaging or personal use. The review was also not “excessively intrusive.” Although Quon had gone over his monthly allotment a number of times, OPD requested transcripts for only the months of August and September 2002. While it may have been reasonable as well for OPD to review transcripts of all the months in which Quon exceeded his allowance, it was certainly reasonable for OPD to review messages for just two months in order to obtain a large enough sample to decide whether the character limits were efficacious. And it is worth noting that during his internal affairs investigation, McMahon redacted all messages Quon sent while off duty, a measure which reduced the intrusiveness of any further review of the transcripts.

Furthermore, and again on the assumption that Quon had a reasonable expectation of privacy in the contents of his messages, the extent of an expectation is relevant to assessing whether the search was too intrusive. Even if he could assume some level of privacy would inhere in his messages, it would not have been reasonable for Quon to conclude that his messages were in all circumstances immune from scrutiny. Quon was told that his messages were subject to auditing. As a law enforcement 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. Under the circumstances, a reasonable employee would be aware that sound management principles might require the audit of messages to determine whether the pager was being appropriately used. Given that the City issued the pagers to Quon and other SWAT Team members in order to help them more quickly respond to crises—and given that Quon had received no assurances of privacy—Quon could have anticipated that it might be necessary for the City to audit pager messages to assess the SWAT Team’s performance in particular emergency situations.

From OPD’s perspective, the fact that Quon likely had only a limited privacy expectation, with boundaries that we need not here explore, lessened the risk that the review would intrude on highly private details of Quon’s life. OPD’s audit of messages on Quon’s employer-provided pager was not nearly as intrusive as a search of his personal email account or pager, or a wiretap on his home phone line, would have been. That the search did reveal intimate details of Quon’s life does not make it unreasonable, for under the circumstances a reasonable employer would not expect that such a review would intrude on such matters. The search was permissible in its scope.

 

Case Questions

1. The Supreme Court and the Ninth Circuit reached different conclusions on the issue of the proper scope of the search. Which one do you think is the better approach? Why?

2. Both courts agreed that Quon did not have a reasonable expectation of privacy in the text messages, despite the fact that his boss told him that the messages would be private if he paid the overages. What statements or acts by an employee, in your opinion, would be necessary to create an expectation of privacy in the messages? Where is the line drawn?

3. Would this case, in your opinion, have been decided differently if it had involved an employer-supplied communication device other than a pager? If so, how?