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Supreme Court allows reasonable searches of private texts on work-issued devices

By Sarah Miley

[JURIST] The US Supreme Court [official website; JURIST news archive] on Thursday unanimously ruled [opinion, PDF] in City of Ontario v. Quon [Cornell LII backgrounder; JURIST report] that an employer's search of private text messages on a work-issued device does not violate the Fourth Amendment [text] if the search is motivated by a legitimate work-related purpose and is not excessive in scope. The court's ruling applies even when the employee possess a reasonable expectation of privacy in the device. The US Court of Appeals for the Ninth Circuit had ruled [opinion, PDF] that Quon, a special weapons and tactics (SWAT) team member, had a reasonable expectation of privacy in text messages sent to and from his SWAT pager under an informal policy of allowing personal use of the pagers, and therefore his Fourth Amendment rights had been violated. Justice Anthony Kennedy, writing the opinion of the court, reversed the circuit court opinion holding that the search is validated if it is reasonably related to the employer's legitimate work-related objectives and narrow in scope, regardless of an employee's expectation. The court cautioned that the ruling should be applied narrowly and should not determine privacy expectations of emerging technology before its role in the work place is fully developed:

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. 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. A broad holding concerning employees' privacy expectations vis-a-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.

Justice Antonin Scalia joined all but one part of the court's opinion, and additionally wrote a concurrence in part and in the judgment. Justice John Paul Stevens wrote a separate concurrence.

The case was brought by Ontario SWAT officer Jeff Quon after text messages on work-issued pager were searched during a department review. The police department had an official no-privacy policy, but a lieutenant announced an unauthorized informal policy of allowing some personal use of the pagers, which Quon utilized. After determining the current payment system was not efficient, the department ordered a review of the content of the text messages for the purpose of determining how many of the text messages were for business purposes. The search revealed Quon had sent personal messages to friends, as well as sexually explicit texts to both his wife and mistress. Quon then filed suit against the department claiming a violation of the Fourth Amendment under unreasonable searches.

Full post as published by JURIST - The Paper Chase on June 17, 2010 (boomark / email).