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Supreme Court: Warrantless Search of Messages on Department-issued Pager of Employee Does Not Violate Fourth Amendment

Yesterday, the U.S. Supreme Court ruled that a police chief’s warrantless search of text messages sent by one of his police officer employees on a department-issued pager did not violate the employee’s Fourth Amendment right to be free from unreasonable searches. This case does not give school districts carte blanche to search employees’ electronic devices, even if they are issued by the district. However, it provides some helpful guidance to school districts who are concerned about addressing inappropriate use of technology by employees without violating their constitutional rights.

The decision, Ontario v. Quon, No. 08-1332, 560 U. S. ___ (2010), was authored by Justice Anthony Kennedy for a unanimous Court and reversed the Ninth Circuit’s decision. The Ontario, California Police Department issued pagers with texting features for all police officers. The service contract included a monthly limit on the number of characters each device could receive. When several officers incurred financial penalties for overages in use of the pagers for several consecutive months, the police chief ordered transcripts of the text messages being sent and received by the officers. The chief sought to determine if the overages were solely based on work-related use while on duty. He intended to modify the plan to allow additional data transfer if the officers needed it for job-related communication. Some of Quon’s text messages were sexually explicit. Moreover, they were sent while on duty according to department work schedules. Quon was investigated by Internal Affairs and ultimately disciplined for violating department rules.

Quon and other employees sued the Ontario Police Department, claiming it violated their rights under the U. S. Constitution’s Fourth Amendment to be free from unreasonable searches. The Court held that the search was for a “legitimate work-related purpose,” “not excessive in scope,” and “reasonably related to the objectives of the search.” Therefore, it was not unreasonable under the Fourth Amendment. Notably, the Court specifically referenced the Department’s “Computer Usage, Internet and E-mail Policy” in which the City reserved “the right to monitor and log all network activity including e-mail and Internet use, with or without notice.” The Policy, which was in effect prior to the issuance of the pagers, also stated, “Users should have no expectation of privacy or confidentiality when using these resources.” While the policy did not explicitly reference text messages, the City gave notice to employees, including Quon, in a staff meeting and by written memorandum that text messages were considered to be e-mail messages and would be considered public information and subject to auditing.

While the Court assumed that Quon had a reasonable expectation of privacy in this case, the Court declined to establish a broader framework for evaluating when such an expectation exists, noting the fast-evolving technology and lack of established norms at the present time.

For school districts, as public entities, this decision re-emphasizes the importance of having a clear and comprehensive computer and electronic media usage policy. In this case, the policy’s failure to mention text messages was fortunately covered by later documentation and meetings clarifying the policy. Districts should also ensure prior to a warrantless search of an electronic device issued to an employee for work purposes that 1) the search is for a legitimate work-related purpose; 2) not excessive in scope; and 3) reasonably related to the objectives of the search. Districts who wish to conduct warrantless searches of mobile electronic devices owned by employees or students should not rely on this ruling but instead contact legal counsel.

Our attorneys are available to assist with any questions you may have regarding this ruling or for further consultation.