US Supreme Court Weighs In On Instant Messaging Privacy Issues

John Blumenschein Recognizing the growing convergence of law and technology, the Supreme Court of the United States delved into the Constitutional issues of electronic communications in the recent opinion, City of Ontario, California v. Jeff Quon, 2010 WL 2400087 (U.S.S.C., June 17, 2010). In a unanimous decision, in which Justices Scalia and Stevens concurred, Justice Kennedy delivered the opinion which held that the City of Ontario, California did not violate the Fourth Amendment rights of Quon when they searched the electronic text message history of his city-issued pager. Because of the non-work related subject-matter of the texts and the electronic device from which they were sent, some legal commentators believe that this holding has the potential to reach beyond Fourth Amendment search-and-seizure issues, and actually widen the scope of relevant data in civil litigation.

In this matter, the city had acquired pagers capable of sending text messages, and issued them to the officers of the Ontario Police Department (OPD), where Quon was employed as a member of the SWAT team. Quon and other OPD officers used the pagers for personal texts, and some of Quon’s texts were sexually explicit in nature. The department had a defined computer policy in place for email usage, however, they also made clear to employees that they would treat personal text messages on the department-issued pagers the same as emails. Quon, however, received somewhat conflicting information from his superiors regarding personal text messages. After numerous issues involving overages with the pagers, the chief of the OPD conducted an audit to determine whether the charges were personal or work-related. Quon’s personal texts were revealed, and he was subsequently disciplined by the OPD. In response, Quon filed a claim against the city alleging that the search of his text messages violated his Fourth Amendment rights. The district court found for the defendants; the 9^th Circuit Court of Appeals reversed, and the Supreme Court reversed the decision of the 9^th Circuit.

The Court went onto find that even though Quon had a reasonable expectation of privacy with regard to his text messages, the search conducted by the city did not violate his Fourth Amendment rights. The Court noted the “special needs of the workplace” exception to the warrant requirements of the Fourth Amendment in order to justify the search of the Quon’s text history. The Court found that the under this exception, there were reasonable grounds for suspecting that the search was necessary for the “non-investigatory work-related purpose” of determining whether Quon’s overage charges were personal or work-related.

While there is debate as to what kind of impact this decision will have on subsequent cases (most notably cases involving electronic discovery), Ontario v. Quon is one of the first rulings by the United States Supreme Court to address the ever-increasing issues surrounding the use of electronic evidence and technology in litigation.