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Chief Reads Officer’s Text Message

Written by Randy Means

On June 17, 2010, the United States Supreme Court provided guidance regarding a police department’s access to its officers’ text messages on a department-issued pager. Noting continuous changes in privacy expectations and rapid advances in the capability of electronic communication equipment, the Court was careful not to offer any sweeping announcement regarding electronic communications in the workplace.

The Court did not announce a well-defined rule, but it provided insight that is useful to both individual police officers and police departments in determining how the courts will evaluate similar cases involving employer-provided communication devices.

Excessive Use of Pager Prompts Investigation

A police department in California issued pagers to Sergeant Jeff Quon and other SWAT team members to help them mobilize in response to emergencies. The pagers were capable of sending and receiving text messages. The pager service agreement limited the number of characters that the pagers could send or receive each month without incurring additional fees.

City employees had already signed a “Computer Policy” stating that the city reserved the right to monitor Internet use and e-mails without notice to employees, and employees should not expect privacy or confidentiality when using those resources. The policy did not specifically address pagers, but a supervisor explained in a staff meeting and later by memo that text messages conveyed by the pagers would be treated the same as e-mail messages and were eligible for auditing.

Quon exceeded the number of characters allowed within the first couple of billing cycles after he received the pager. A lieutenant told Quon about the overuse and reminded him that text messages could be audited. Quon and other employees who exceeded the plan’s permitted use reimbursed the city for the excess fees. When the chief learned that officers were paying for these overages, he decided to assess whether the service plan for the pagers was insufficient to meet their needs, and whether officers were paying for work-related messages or for personal messages. He instructed the lieutenant to obtain transcripts of text messages for the two previous months from Quon’s pager and from others who exceeded the allowance.

A review of Quon’s transcripts revealed that most of the messages were not work related, and some were sexually explicit. The chief reviewed the transcripts and referred the matter to the department’s internal affairs. Internal affairs limited its review to the messages sent during Quon’s work hours, eliminating messages sent while he was off duty.

The report revealed that of 456 messages sent or received during his work hours in one month, no more than 57 were work related. Quon sent or received 28 messages during an average work day, three of which were work related. Quon was apparently disciplined for violating department rules by pursuing personal matters while on duty. Quon and some of the people he was texting filed suit, alleging the city violated their Fourth Amendment rights by invading their privacy and conducting an illegal search. The Supreme Court deemed the city’s conduct to be a reasonable search.

Fourth Amendment Issues

For purposes of this case, the Court accepted (without confirming) that the city’s review of the text messages was a search. The Fourth Amendment requires government searches to be reasonable, even when the government is in the role of employer (such as in public law enforcement agencies), regardless of whether the government’s search is for a work-related investigation or for a criminal investigation. Searches without warrants are unreasonable unless they satisfy an exception to the warrant requirement.

The “special needs of the workplace” exception applies to some workplace searches conducted by government employers. After making a few assumptions specific to this case, the Court considered alternative analyses and determined that the city’s search of the text messages met the “special needs” exception for government workplaces.

Supreme Court Avoids the Big Issue

Previously, in O’Connor v. Ortega, the Court disagreed on the proper analysis required for Fourth Amendment claims against government employers and announced two ways to analyze the reasonableness of searches by government employers. In Quon, the Court determined that the search was reasonable under either O’Connor analysis, so it was not necessary to decide which analysis was correct. Even so, it is useful to understand what factors the Court considered in determining that the search was reasonable.

Applying the first analysis from the O’Connor case to the facts of Quon, the Court assessed whether the search was justified at its inception, and whether the search that was carried out was reasonably related to its purpose. The city initiated the search of text messages because of the legitimate business interest in determining whether the service plan for the pagers was sufficient to satisfy its needs, and also to determine whether officers were paying for work-related communications or for personal messages.

The measures that the city took efficiently addressed its concerns and were not excessively intrusive. There were several months of overages, but only two months were reviewed. Off-duty messages were excluded. Notice was given that e-mails and texts could be audited. Thus, the Court determined that the city’s search was reasonable because it “was motivated by a legitimate work-related purpose, and because it was not excessive in scope.”

The second O’Connor analysis more simply stated that the search of text messages “would be regarded as reasonable and normal in the private-employer context” and would therefore be reasonable for a government employer under the Fourth Amendment and the “special needs of the workplace” exception to the warrant requirement. Thus, by finding that the search (if it was one) was reasonable under either O’Connor analysis, the Court avoids the need to determine which analysis applies to Quon and declines to identify one as the standard for future cases.

Conclusion

The Court avoided making a broad statement regarding electronic communications in the workplace, but it provided some insight into the factors that may make a government employer’s search of text messages, or other electronic communications, reasonable. Importantly, the Court does not resolve the question of whether Quon (or others) had a reasonable expectation of privacy in the content of the text messages conveyed through the employer-provided pager. The Court avoided answering that question by saying that even if he did, the government’s search was reasonable.

Officers should be mindful that personal communications transmitted over employer-provided communication devices may be subject to inspection. While not necessarily determinative, law enforcement agencies should provide officers with written policies defining when electronic communications are subject to inspection and advising employees they have no privacy interest in the content of messages conveyed on department-issued devices.

Then, it becomes important that agencies actually do such inspections periodically to assure that employees do not develop a sense that the policies are fictions, or that they actually can reasonably expect privacy in their electronic communications, especially on department-issued equipment.

Randy Means is a partner in Thomas & Means, a law firm specializing entirely in police operations and administration. He has served the national law enforcement community full time for more than 30 years and is the author of “The Law of Policing,” which is available at LRIS.com. He can be reached directly at rbmeans@aol.com.

In her 20-year career with law enforcement, Pam McDonald has been a patrol officer, a felony investigator, a felony prosecutor and a college professor in the area of police law. She currently serves as head of the Thomas & Means publications section and assists Randy Means in much of his work. She can be reached at pammcdonaldfirm@aol.com.

Published in Law and Order, Sep 2010

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