Thoughts on City of Ontario v. Quon: The Fourth Amendment and Privacy of Electronic Communications in the Workplace

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9 Responses

  1. Orin Kerr says:


    I suspect your view will get zero votes on the current Court.

    The problem with saying that the informal policy trumps the written policy is that no one knows what the “informal” policies are. (What is enough, by whom, and when?) And without that, no one will know what the rights are, and without that, no one knows what searches are allowed.

    As for your privacy concerns, it’s important to remember that we’re only talking about government employee privacy rights, not employee privacy rights generally: O’Connor v. Ortega has no application to the private-sector workplace.

  2. Daniel Solove says:


    But if the Court follows O’Connor v. Ortega then it must look to context to determine whether employees have a reasonable expectation of privacy. Your complaint above would apply to Ortega too. Consider what the Court said in Ortega:

    The operational realities of the workplace, however, may make some employees’ expectations of privacy unreasonable when an intrusion is by a supervisor rather than a law enforcement official. Public employees’ expectations of privacy in their offices, desks, and file cabinets, like similar expectations of employees in the private sector, may be reduced by virtue of actual office practices and procedures, or by legitimate regulation. . . . The employee’s expectation of privacy must be assessed in the context of the employment relation. An office is seldom a private enclave free from entry by supervisors, other employees, and business and personal invitees. Instead, in many cases offices are continually entered by fellow employees and other visitors during the workday for conferences, consultations, and other work-related visits. Simply put, it is the nature of government offices that others — such as fellow employees, supervisors, consensual visitors, and the general public — may have frequent access to an individual’s office. . . . Given the great variety of work environments in the public sector, the question whether an employee has a reasonable expectation of privacy must be addressed on a case-by-case basis. . . .

    It would seem that Ortega invites a contextual analysis. The Court seems fine with not having a bright-line rule for whether there’s a reasonable expectation of privacy in an office, or in a computer, or in other areas of the workplace. So why would it be so unworkable to lack a bright-line rule for the extent to which a workplace monitoring policy affects employee reasonable expectations of privacy? Indeed, Ortega notes that employees’ expectations of privacy “may be reduced by virtue of actual office practices and procedures.” I’m suggesting an approach that looks at “actual office practices” and am proposing a way to reconcile actual office practices with written office policies. And my approach is no more contextual than what the Court suggests in Ortega.

  3. Orin Kerr says:


    I disagree. That section was in response to DOJ’s argument that by virtue of being a government employee, you lose all Fourth Amendment protection at work. No, Justice O’Connor says: You need to look at each workplace individually.

    The next question is *how* you look at each workplace. And I think the REP analysis in O’Connor’s plurality was designed to make sure workplace policies could trump reasonableness balancing. Otherwise there is no point in the REP analysis, as step 2 of O’Connor — after step 1, which is whether there is an REP — is the reasonableness balancing inquiry.

  4. Daniel Solove says:


    I’m not sure I follow you. I understand Ortega to be saying that the REP analysis of the workplace is a complicated and contextual issue, and depends upon a lot of factors. Each particular government workplace is different.

    I agree that REP is the first question to be addressed, and it is here where I argue that a general workplace policy isn’t dispositive. In Quon, there’s a general computer policy yet also an informal policy/practice for texting. For the purposes of determining REP, should the courts look to (1) only the general computer policy; or (2) the totality of the circumstances, which include the general policy as well as any informal policies/practices? I think (2). And I think that’s totally consistent with Ortega. Nothing in Ortega states that a written or formal general policy should be the only thing considered to determine whether there’s an REP.

    On what you call step 2, which is the reasonableness balancing, this is done only if there’s a REP. I agree that this is step 2. I address this in my post under the last heading, entitled: Was Obtaining the Contents of the Text Messages “Reasonable”?

    Suppose the following hypos:

    A government workplace has a formal written policy which says that all electronic communications of employees will be monitored.

    A. Employees are given iPhones and told: “Don’t worry about the iPhones. We don’t monitor them at all.” REP in iPhones?

    B. Same as above, except employee asks employer: “But doesn’t the policy say all electronic communications will be monitored?” And employer replies: “Ignore that. Our formal policy doesn’t apply to iPhones.” REP?

  5. Orin Kerr says:


    I don’t think case-by-case means “totality of the circumstances.” I think it means, “each government office might have different rules and practices and therefore different employee rights.”

    As for your hypo, when you say the employees are “told” something, who is doing the telling? And is “the employer” who makes the exception for iPhones the same employer that promulgated the policy?

  6. Daniel Solove says:


    I think we largely agree, but strangely keep talking past each other. I agree that “each government office may have different rules and practices and therefore different employee rights.” The question is whether one looks only to formal written policy or to ALL of an office’s rules and practices. I believe one looks to ALL. In Quon, those rules and practices are difficult to interpret because the formal policy was broad and general, and there were specific statements, practices, and informal policies regarding texting.

    Regarding my hypos, let’s examine the following cases for who tells the employees about the conflicting informal policy:

    1. The chief of the police department or the head of a particular government agency

    2. The person who is the highest ranking official within the particular office location

    3. An immediate supervisor of the employee who has the responsibility of carrying out the policy

  7. don wagner says:

    The worker was on paid time and therefor should follow the industry standard of good behavior and sending the texts that are “out of line” is a violation of the work rules, therefor any and all texts can be used to support any “charges”. Once again, a person does something wrong and does not want to be held accountable for their actions.

  8. Jerod says:

    Government system login messages above state (federal, military, state department) from what I have seen usually outline in a very open format what level they monitor you. i.e.

    1. All Electronic media is monitored. However, it stipulates they only monitor for certain things.

    a. viruses
    b. court appointed items (people found with kiddie porn,
    sharing of classified information, pornography, etc)
    c. hacking

    Outside of those, they stipulate you will only use it for approved message boards, email, or networking of any type related to work.

    On breaks you can expect a reasonable privacy to banking, news, personal email, and more recently social websites. The only time they will monitor that is if you fall under the other items listed above.

    Basically that is acceptable even in texting. If a trend of abuse with the texting is seen, they do as a sponsor to the equipment/ line afford rights to find out why. That would be easily done by just telling the guy to not text his girl friend 90000 times a day on a government phone.

    As for reading the texts, it should be afforded that unless it falls under the information above the user is given privacy.