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City of Ontario v. Quon and the Impact on Law Enforcement

Written by Cara Donlon-Cotton

In June, the United States Supreme Court rendered a decision that will have an enormous impact on all government employees. In City of Ontario v. Quon, the Court ruled that public employees have no right to privacy, as it concerns their department-issued electronic devices, if their employers have a “legitimate work-related” reason to search electronic files.

In 2002, a SWAT sergeant (Quon) with the City of Ontario, Calif., used his department-issued pager to exchange numerous non-work-related texts, some sexually explicit, with his wife and girlfriend. While the city had a clearly written policy regulating the use of computer and electronic equipment, it did not specifically include text messages and alphanumeric pagers.

SWAT team members were verbally informed by a supervisor that messages sent and received with the pagers would be “considered e-mail and could be audited,” and, hence, not private. A memo was distributed to reflect those verbal statements. The agency’s policy, however, was never changed to reflect the addition of the new electronic devices and their usage. Furthermore, there was an unwritten understanding that if an officer exceeded the allotted minutes/messages provided by the city’s contract with the wireless company, that officer was to pay for the overage charges.

Quon was one of several who agreed to pay for his overage fees rather than have his usage audited. After several months of collecting overage fees from individual officers, the lieutenant overseeing the paging accounts expressed to the police chief his displeasure at having to act as a “bill collector.” The chief then decided to audit the usage details of the devices maintained by Quon and another officer who accrued overage fees to see if the character limit set for officers was insufficient and should be increased.

In other words, the chief wanted to see if the officers’ messages were work-related or personal, because if they were work-related, they shouldn’t have to pay for the overage charges. The wireless company turned over the usage transcripts to the police department, and Quon’s sexually explicit messages were brought to light. Cue the IA investigation.

The IA investigator consulted Quon’s work schedule for that month and determined when the officer was actually working so as to eliminate any messages that were sent while off duty. The investigation revealed that of the 456 on-duty messages Quon sent during the audited month, only 57 were work-related and many were sexually explicit. The report found, according to the court case, that Quon “sent as many as 80 messages during a single day at work; and on an average work day, Quon sent or received 28 messages, of which only three were related to police business.” Quon was disciplined for violating departmental rules.

The Lawsuits Begin

Quon, his texting partners, and another officer with overage fees sued the department and the wireless company for violating their Fourth Amendment rights and the Stored Communications Act (SCA) by obtaining and reviewing the pager transcripts. They also claimed that the wireless company violated the SCA by turning over the transcripts to the city. They sued in U.S. District Court and lost, with the court citing O’Connor v. Ortega (1987) as its basis for ruling against Quon and the others.

The court ruled that Quon had a reasonable expectation of privacy in the content of his text messages. Whether the audit of the text messages was nonetheless reasonable, the District Court concluded, depended on the chief’s intent: If the purpose for the audit was to determine if Quon was using his pager to play games and waste time, then the audit was not constitutionally reasonable. But if the audit’s purpose was to determine the efficacy of the existing character limits to ensure that officers were not paying hidden work-related costs, no constitutional violation occurred.

The purpose and intent of the audit of the text messages, per the direction of the court, was determined by the jury, which found that the texts had been reviewed to assess whether officers had been given a sufficient character limit to do their jobs. Thus, no Fourth Amendment rights had been violated. The court handed down its ruling in favor of the city and the wireless company.

The Appeal

Quon and his co-petitioners appealed to the Ninth Circuit Court of Appeals which reversed part of the lower court’s decision. In 2008, the Appeals Court agreed with the District Court that Quon had a reasonable expectation of privacy in his text messages but disagreed with the District Court about whether the search was reasonable. Even though the search was conducted for a legitimate work-related reason, the Court of Appeals concluded that it was not reasonable in scope. The Appeals Court also held that the wireless company violated the SCA when it turned over the transcripts.

When the Appeals Court denied a petition to rehear the case, the city and the wireless company petitioned the Supreme Court. The Court only agreed to hear the city’s case and denied hearing the case about the SCA. The Court concluded that the original court was correct in its ruling and held that, because the search of Quon’s text messages was reasonable, petitioners did not violate respondents’ Fourth Amendment rights, and the Ninth Circuit erred by concluding otherwise.

Citing Ortega, the Court reiterated the proper two-step analytical framework for Fourth Amendment claims against government employers. First, because some government offices may be so open that no expectation of privacy is reasonable, a court must consider the operational realities of the workplace to determine if an employee’s constitutional rights are implicated. Second, where an employee has a legitimate privacy expectation, an employer’s intrusion on that expectation for non-investigatory, work-related purposes, as well as for investigations of work-related misconduct, should be judged by the standard of reasonableness under all the circumstances.

The Court also ruled that the people who exchanged messages with Quon had no expectation of privacy either, because their rights were no more important than Quon’s.

Implications of the Ruling

In reality, the Court told us nothing we didn’t already know—that if you misuse government-issued equipment, you can be punished for it. But now public employers have a legal precedent to cite when they want to search for misuse. The catchphrase, of course, is “legitimate work-related purposes” which, even when interpreted narrowly, empowers public employers to search through department-issued computers, laptops, phones, pagers, etc., for a variety of reasons.

Bills too high? Search through officers’ sent text messages. Taking too long to respond to a call? Search the cell phone records to get the coordinates of all sector cars. Productivity down in your precinct? Search the computer logs for Internet usage.

Impact on Open Records

The ruling will have a tremendous impact on several areas, including Open Records and Freedom of Information Act requests. Now that it has been established that law enforcement agencies can access such records without violating their employees’ Fourth Amendment rights, it can be argued that such records retrieved for that purpose automatically then become public records. While certain elements may qualify for redaction and certain timeframes may come into play (a certain number of days after an IA investigation has been completed, for example), the records themselves could realistically become available for public consumption.

So what other doors has this decision opened? What about the records of personal electronic equipment? While the Court even used an example of how the search of a work-issued device is less invasive than a search of one’s personal e-mails or wiretapping one’s home phone, it didn’t specifically address a common, and maybe risky, practice that many law enforcement officers follow: using a personal electronic device WHILE working.

Could your agency have a legitimate work-related reason to search the records of that device? Let’s take it a step further: Do you EVER use your personal device for work-related purposes? In many states, by crossing that line, you’ve made those individual records available to the public via open-records laws. But now the question becomes, can your employers look at every record in their efforts to find the work-related ones? And, by doing so, do those non-related records become open records because an agency acquired them to conduct government business? In other words, the can has been opened, and there are worms everywhere. Good luck sticking them back in that can.

Higher Expectations of Law Enforcement

In the written opinion of the Court, Quon was admonished for not realizing his messages would not be completely and totally private. The justices of the Supreme Court basically held him to a higher standard because he was a law enforcement officer who should have known better.

They stated: “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.”

What does this say about the law enforcement officer’s role in society? Basically, it means the law enforcement officer is held to a higher standard. Even more simply: Excuses aren’t going to fly.

The Written Policy

Another issue that arose during the deliberations of this case was whether or not Quon had a reasonable expectation that his messages would always remain private. The issue was an old one: Do verbal directives supersede written policy? In this case, Quon argued that because he was verbally informed that if he paid for his overages, his messages would not be audited, they should have remained private.

The issue, according to the Court, was whether the person issuing the directive had the authority, or appearance of authority, to issue a directive that would make the receiver think it overruled policy. Remember, because the city’s policy was clear about e-mails, and a written memo backed up the verbal directive stating the texts would be treated like e-mails, the decision was a fairly easy one: written all the way.

This case is just another example of how important written policies are and will be. No one ever thinks the United States Supreme Court will be reviewing their policy manuals but, as this case shows, it can happen. Are your policies ready for such scrutiny?

While on the surface, City of Ontario v. Quon appears to be just another simple Fourth Amendment decision, this is clearly not the case. This decision should serve as fair warning to all law enforcement agencies to get their policies in order while also alerting officers that they will be held to higher standards than the average citizen.

Bottom line: If you’re doing something you’re not supposed to be doing on your government electronic equipment, be prepared to take your punishment. And don’t go crying to the Supreme Court about it—they’ve already made up their minds.

Cara Donlon-Cotton is a former course developer and instructor with the Georgia Public Safety Training Center. She currently teaches Media Relations and Public Relations to local law enforcement agencies. She can be reached at cdonloncotton@yahoo.com or through the Public Safety Training and Education Network at http://psten.com.

Published in Tactical Response, Mar/Apr 2011

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