Ontario v. Quon, 560 U.S. 746 (2010), is a United States Supreme Court case concerning the extent to which the right to privacy applies to electronic communications in a government workplace. It was an appeal by the city of Ontario, California, from a Ninth Circuit decision holding that it had violated the Fourth Amendment rights of two of its police officers when it disciplined them following an audit of pager text messages that discovered many of those messages were personal in nature, some sexually explicit. The Court unanimously held that the audit was work-related and thus did not violate the Fourth Amendment's protections against unreasonable search and seizure.

Ontario police sergeant Jeff Quon, along with other officers and those they were exchanging messages with, had sued the city, their superiors and the pager service provider in federal court. They had alleged a violation of not only their constitutional rights but federal telecommunications privacy laws. Their defense was that a superior officer had promised the pager messages themselves would not be audited if the officers reimbursed the city for fees it incurred when they exceeded a monthly character limit.

Justice Anthony Kennedy wrote the majority opinion signed by seven of his fellow justices. It decided the case purely on the reasonableness of the pager audit, explicitly refusing to consider "far-reaching issues" it raised on the grounds that modern communications technology and its role in society was still evolving. He nevertheless discussed those issues at some length in explaining why the Court chose not to rule on them, in addition to responding, for argument's sake, more directly to issues raised by the respondents. John Paul Stevens wrote a separate concurring opinion, as did Antonin Scalia, who would have used a different test he had proposed in an earlier case to reach the same result.

Outside commentators mostly praised the justices for this display of restraint, but Scalia criticized it harshly in his concurrence, calling it vague. He considered his fellow justices in "disregard of duty" for their refusal to address the Fourth Amendment issues. A month after the court handed down its decision, an appellate court in Georgia similarly criticized it for "a marked lack of clarity" as it narrowed an earlier ruling to remove a finding that there was no expectation of privacy in the contents of email.Rehberg v. Paulk, 611 F. 3d 828, at 844,846-847 (11th Cir., 2010). An article in The New York Times later summarized this criticism, and its "faux unanimity", as emblematic of what some judges and lawyers have found an increasingly frustrating trend in Roberts Court opinions.

Underlying dispute

In 2001 the Ontario Police Department (OPD) acquired 20 alphanumeric pagers to distribute to officers in its SWAT unit so they could better coordinate their activities.Ikuta, Sandra Segal; The contract between the department and Arch Wireless, now USA Mobility, was for usage up to a fixed limit of 25,000 characters per month,Quon v. Arch Wireless Operating Company, 529 F.3d 892 (9th Cir., 2008). above which an overage fee would be charged. Pager use was covered by the OPD's computer and Internet use policy, under which employees agreed 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 did not specifically mention text messages, but employees were told both verbally, at a staff meeting and through a memorandum that they were included and that only "light personal communications" were allowed during work hours. It also stated that "inappropriate, derogatory, obscene, suggestive, defamatory, or harassing language in the e-mail system will not be tolerated". Several officers, including Sgt. Jeff Quon, a 20-year veteran of the department, exceeded the limit during the first two billing cycles. He was allowed to reimburse the city for the fee. Lt. James Duke, head of the department's Administrative Bureau, told him that his communications would not be monitored if he paid the overage, but that he should stop using the pager so much. When Quon and another officer continued to exceed the limit and reimburse the city, Duke told then-Chief Lloyd Scharf he was "tired of being a bill collector". The OPD began to consider whether the character limit it had contracted for was too low and it was forcing officers to pay for work-related communications, as had sometimes happened in the past.

At Scharf's direction, Duke requested from Arch transcripts of text messages sent by Quon and the other officer. After verifying that the city was the subscriber on the account, an Arch employee sent Duke the transcripts. Many messages were personal and some were sexually explicit, sent by the married Quon to his girlfriend at work. In one month as few as 8% of Quon's texts had been work-related. A transcript from which messages sent when Quon and the other officer were off-duty had been redacted was sent to the OPD's internal affairs sergeant, and after an investigation Quon and the other officer were allegedly disciplined.

Existing law

The case would involve two areas of law, both coming under the Fourth Amendment. The first was the privacy rights Quon and the other officers had over text messages sent on equipment paid for by their employers. The other was their rights as public employees, since their superiors were also agents of the state.

Congress had passed the Electronic Communications Privacy Act in 1986, which addressed issues raised as more and more companies stored records with highly personal data about individual consumers in off-site databases operated by third parties. A key section, known as the Stored Communications Act (SCA), distinguished between electronic communications services which actively transmitted and received data and remote communications services whose only role was to archive and backup transmitted data for at least some period of time. The former could release transmitted data only to its sender or recipient; the latter could also release that information to the subscriber regardless of who had sent or received it.

The following year, 1987, the Supreme Court had first dealt with the Fourth Amendment rights of government employees under administrative investigation in O'Connor v. Ortega, a case arising from the search of a supervising physician's office and records at a California public hospital. By a 5-4 margin the court had ruled that while public employees had Fourth Amendment protections, the search was reasonable and constitutional and that other such warrantless searches of public employees' belongings or workspace, where applicable, were similarly permissible as long as they were reasonably work-related in inception and scope.O'Connor v. Ortega, , O'Connor, J., at 717.

The justices in that majority differed on what standards to use for evaluating the reasonableness of a search of a public employees' personal space and belongings. Sandra Day O'Connor wrote for a four-justice plurality declaring that government employees did not lose their Fourth Amendment rights at work. In the latter instance, since the working environments of public employees can be drastically different, leading to some where no reasonable expectation of privacy could be argued to exist, lower courts should consider the "operational realities" of the work environment when determining if a public employee's rights against unreasonable search and seizure were violated. Following the principle laid out in Connick v. Myers, an earlier decision concerning the constitutional rights of public employees, that "government offices could not function if every employment decision became a constitutional matter",Connick v. Myers , White, J., at 143. the majority distinguished between searches "merely incident to the primary business of the agency," such as the retrieval of a document or tool from a desk or locker and thus not requiring a warrant at all, from those conducted to investigate a possible violation of workplace rules and procedures.O'Connor, at 722.

In a concurring opinion, Antonin Scalia rejected the plurality analysis, saying instead that "government searches to retrieve work-related materials or to investigate violations of workplace rules — searches of the sort that are regarded as reasonable and normal in the private employer context — do not violate the Fourth Amendment".O'Connor, at 732, Scalia, J., concurring.

Since Scalia's opinion had provided the case's deciding vote, either it or the plurality could be used by lower courts until another such case were to come to the court and force a resolution of the question. The court would consider the Fourth Amendment rights of public employees again two years later, in 1989's Treasury Employees v. Von Raab. In that case another divided court upheld the Customs Service's requirement that applicants for positions that involved carrying a firearm and the possibility of drug interdiction undergo drug tests by urinalysis.

Litigation

The case began in federal court. After a district court found in favor of the defendants, a three-judge appellate panel reversed the decision. The circuit court denied a petition for an en banc rehearing; a simultaneous certiorari petition to the Supreme Court was granted.

A major issue at all levels was whether the department's written Internet policy, or Duke's practice of just collecting the overage fee, was the operating reality of the OPD workplace. If it was the former, Quon had no reasonable expectation of privacy for his pager messages. The city and department argued that Duke could not set or amend policy so what he said was irrelevant. And even if it was, it did not matter since the pager messages could be disclosed under the California Public Records Act. The plaintiffs argued that since Duke was the officer in charge of the contract with Arch, and the policy change that covered the pagers was never communicated in any definitive way, his assurance that he would not read Quon's messages if he reimbursed the city was all that mattered.

For Quon's co-plaintiffs, there was what one commentator later called "the really tricky question in the case", their claim that the city violated their privacy in the course of investigating Quon. Two of the other plaintiffs were OPD employees who had not had pager overuse problems, and the third, his estranged wife, had left the OPD's employment and was using her own pager. The city argued that they should have been aware Quon had no expectation of privacy and that thus their exchanges with him would not be protected, either.

Trial