U.S. Supreme Court:  City's search of government-owned text messaging device did not violate employee's Fourth Amendment rights  

The U.S. Supreme Court unanimously upheld the City of Ontario's audits of text messages sent from an employee on a city-owned hand-held pager, finding the search did not violate the employee's Fourth Amendment rights. The decision, filed on June 17, 2010, is the first Supreme Court decision addressing what Fourth Amendment rights employees may have in the use of such government-owned, hand-held electronic devices.

In City of Ontario v. Quon, 2010 WL 2400087 (2010), the City issued alphanumeric pagers to several of its SWAT team members, including Sergeant Jeff Quon, in order for them to mobilize and respond to emergency situations. Its service contract limited the number of characters each pager could send and receive each month.

Before acquiring the pagers, the City announced its "Computer Usage, Internet, and E-Mail Policy," which applied to all employees. The policy provided that the City "reserves the right to monitor and log all network activity including e-mail and Internet use, with or without notice." The policy further provided that employees "should have no expectation of privacy in the use of these resources." Quon signed a statement that he read and understood the policy.

The policy did not specifically address text messaging. However, during a staff meeting that Quon attended, the lieutenant responsible for the city's pager services contract stated that text messages would be considered e-mails for purposes of the policy and would be subject to auditing. A memorandum stating the same was sent to Quon and other city personnel.  

Despite the written policy and memorandum, the lieutenant told Quon that it was not his intent to audit the text messages to determine whether they were work related. The informal practice was to allow employees to use the pagers for personal reasons. Text messages were not audited so long as the employees paid any resulting overage fees.

When the pagers exceeded the character allotment for several months in a row, the police chief decided to audit the messages sent and received during a two month period to determine whether the present character limit was too low and to ensure employees were not paying for work-related costs. Any messages sent while off duty were redacted before the audit was conducted.

The audit revealed that a vast majority of messages Quon sent during the two month period were not work related and that several of them were sexually explicit. Of the 456 Quon sent while on duty, only 57 were work related. He was subsequently disciplined for violating the OPD rules.

Quon filed suit in federal court, claiming the audit constituted an unreasonable search in violation of his Fourth Amendment rights. The district court held for the City, finding that although Quon had a reasonable expectation of privacy in the pager, the City's search was reasonable because the intent of the search was to ensure that employees were not paying for work-related messages.