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

The Supreme Court will soon hear arguments in City of Ontario v. Quon, an important Fourth Amendment case involving the privacy of electronic communications in the workplace.

The case is on appeal from the 9th Circuit.  The opinion there — Quon v. Arch Wireless Operating Co., Inc., 529 F.3d 892 (9th Cir. 2008) — involved a police department of the City of Ontario, California  which provided pages to its employees.  The department “had no official policy directed to text-messaging by use of the pagers.” It only had a general policy that computer use was not to be for “personal benefit,” that it reserved the right to monitor all network activity, and that “[u]sers should have no expectation of privacy or confidentiality when using these resources.”

When officers exceeded text message limits, they were billed personally for overages.  Jeff Quon did so many times, and always paid, but the city finally obtained transcripts of Quon’s text messages.

Quon and others sued the City of Ontario and Arch Wireless (which handled the text messaging service) under the Stored Communications Act (SCA) and the Fourth Amendment. The court concluded that Arch Wireless violated the SCA when it disclosed the messages to the city as well as violated the Fourth Amendment.

Only the Fourth Amendment issues are before the Supreme Court, which granted cert. on these issues but denied cert. on the appeal of Arch Wireless on the SCA issues.

Here are some thoughts about the case:

The Fourth Amendment in the Workplace. The Fourth Amendment applies differently in the context of a government workplace. In O’Connor v. Ortega, 480 U.S. 709 (1987), the Supreme Court concluded that government employees had Fourth Amendment rights and a reasonable expectation of privacy in the workplace.  However, the Fourth Amendment would apply a little differently than normal.  First, the Court noted that employees’ reasonable expectation of privacy in the workplace is diminished to some degree and must be understood contextually.  Second, the Court held that the “special needs” doctrine applies, and the government employer doesn’t need a warrant or probable cause to conduct a searches so long as the searches involve a workplace-related purpose and are “reasonable.”

Orin Kerr notes that Ortega was a plurality opinion, and the Court could revisit the issue of how the Fourth Amendment applies in the government employment context.  I doubt the Court will do this.  A very extensive body of jurisprudence in lower courts has been built upon Ortega, and it is fairly with how the Court has dealt with the Fourth Amendment in the schools and other special contexts.  So I see the Court following the Ortega approach.

Employer Computer Monitoring Policies: Words vs. Practice. Under Ortega, did Quon have a reasonable expectation of privacy in his text messages?  I believe the answer is yes.  Although the police department had a general policy where it stated that it would monitor computer use, it had an informal policy for text messages (what the 9th Circuit opinion referred to as the “operational reality”).  That policy was that the department wouldn’t look into the officers’ text messages, and if they went over a certain character limit, they’d pay for the use.  The policy implied that officers could use the text messaging for their personal use — that’s why they would have to pay out of their own pocket for going over the character limit.  Why make them pay anything out of pocket if the use was exclusively for their jobs?

This informal policy should trump the general computer policy.  It is far too easy to just roll out boilerplate warnings about monitoring of computer use — these shouldn’t govern over the realities of practice.  The Court should look at the employees’ actual understandings and the actual practices of the department.  Most employers have boilerplate warnings of monitoring, but this boilerplate is meaningless if it doesn’t accord with actual practices and if everybody understands it will be disregarded or not followed in certain contexts.

Responding to Concerns About Looking at “Operational Reality.” What about the potential danger that if “operational reality” trumps written policies, it could lead to a chaos of litigation?  Won’t this open the floodgates to employees challenging employer searches and monitoring?  Employers might try to create clear written policies, but they could be upended whenever an employer makes an exception or a supervisor misinforms an employee or the employer becomes lax and tolerates violations.  Isn’t it just easier to stick to the plain language of a written policy, no matter whether it is followed in practice or not?  I see the Court really getting hung up on this issue.   With the “operational reality” approach, what an employer says in its official policy no longer controls — what an employer does matters more.  And it is so easy for employers to say and do things that might not be consistent with their policies.

Is there a good response to the objection above?  I believe there is.  Without an “operational reality” rule, employers could easily promulgate broad policies of monitoring, and then totally eliminate the Fourth Amendment rights of employees.  Counsel to various government workplaces will urge this general boilerplate monitoring policy to stave off any potential litigation.  Smart lawyers will do this to protect against lawsuits.  This is akin to attempts to use clickwrap contracts or put all sorts of warnings and disclaimers of liability on products.  Nobody really reads them, or believes they matter in practice.  And courts often hold they’re not binding.

What an employer actually does and says in practice is a more accurate indication of the necessity for intruding upon employee privacy.   Ultimately, the goal of Ortega was to recognize there’s a balance between (1) the needs of the employer to monitor employees and sometimes search employee work spaces and (2) an employee’s privacy.  The workplace isn’t a no privacy zone and a no constitutional rights zone.  But as the Court noted in Ortega, there must be a balance, for employers have to be able to maintain efficiency, order, and supervision of their employees.  The “operational reality” is a far better indicator of how important certain incursions on rights and privacy really are to employers.  It is one thing for some distant lawyer to write up a Big-Brother-esque monitoring statement, but the best indication of the value of monitoring to the employer is the extent to which the employer devotes time and resources to the monitoring as part of a routine practice.

Moreover, in a world of clickwrap contracts and excessive warnings, we all know that these have little to do with reality.  And reality should matter for determining reasonable expectations of privacy.  If an employer says, contrary to policy, that it won’t monitor one’s electronic communications, then that should weigh heavily on an employee’s expectation of privacy.

Guidelines. To prevent any minor statement or divergence in practice from undermining an employer’s written general policy, the Court can use the following guidelines:

(1) If the official policy clearly covers the practice at issue, and is specific in referencing it, then there should be a strong presumption it should govern.  This presumption can be overridden only when there is a consistent policy to the contrary demonstrated by clear and convincing evidence based on the employer’s statements and practices.

(2) If the official policy is general in nature, and doesn’t specifically reference the practice at issue, then there should be a weak presumption it should govern.  This presumption can be overridden when there is a preponderance of evidence demonstrating a different policy with regard to the practice at issue.

Applying the Guidelines to Quon. In Quon, we’re in situation (2) above.  The official policy was general in nature and didn’t specifically reference the text messaging service.   Absent anything else, there should be a weak presumption that the general policy governs the text messaging service, but this is overriden by the evidence that personal use of the text messaging service was permitted.  Indeed, the police department had a specific and well-understood practice of handling text messaging use — if employees went over the limit, they paid for the excess themselves.  The focus of the employer was on whether the limit was exceeded or not.  Quon always paid, and followed this policy, and he was reasonable in expecting this policy would continue to be followed unless the police department told him otherwise.  Since the department suddenly did something it had never done before, inconsistent with this informal policy, this should have been communicated to Quon in advance.

Was Obtaining the Contents of the Text Messages “Reasonable”? Short answer: No.  This was totally unnecessary to achieve the department’s goal — to prevent excessive personal use of the text messaging service.   The department could have told Quon and the other officers to avoid exceeding the character limit in the future.  It could have warned them that if they repeatedly exceeded the limit, they’d lose privileges or be sanctioned.  And if it wanted to obtain the contents of the text messages, it should have issued a new policy by telling Quon and others: “Okay, our old policy isn’t working, so we’re changing things.  If you go over the limit repeatedly, we’ll obtain the contents of your messages.”

The Supreme Court should affirm Quon.

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9 Responses

  1. Orin Kerr says:

    Dan,

    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:

    Orin,

    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:

    Dan,

    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:

    Orin,

    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:

    Dan,

    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:

    Orin,

    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:

    Gentlemen,
    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.