Formal v. Informal Policy, Which Will Prevail?

On Dec. 14, 2009, the U.S. Supreme Court granted the city of Ontario's petition for writ of certiorari and agreed to review whether an Ontario police officer has a reasonable expectation of privacy in text messages transmitted on his city-issued pager, and whether third parties sending text messages to the police officer's pager have a similar expectation of privacy in the messages sent. In connection with the privacy analysis, the Supreme Court will need to decide whether an informal city policy announced and implemented by a middle manager supersedes the city's official policy regarding the expectation of privacy in employees' use of city-owned pagers, and whether an employee's reliance on the middle manager's informal policy was objectively reasonable.

The Supreme Court's decision will impact how government agencies implement and enforce their official policies concerning employees' use of government-issued pagers, cell phones, computers and other electronic devices. It will also impact the extent to which an agency is required to police its supervisors and managers to ensure that their informal and unilateral instructions are not undermining the city's official policies.

Quon v. Arch Wireless Operating Co., Inc., 529 F.3d 892 (9th Cir. 2008) arose from the Ontario Police Department's review of text messages sent and received by Jeff Quon, a Sergeant and member of the city's SWAT team. The city contracted with Arch Wireless to provide wireless text-messaging services and received 20 two-way alphanumeric pagers, which the city distributed to its employees. The city had a general "Computer Usage, Internet and E-mail Policy," which stated that use of city-owned computers and all associated equipment was limited to city-related business. The city's official policy specifically reserved the right to monitor employees' use of the city's equipment, and it expressly stated that "[u]sers should have no expectation of privacy or confidentiality when using these resources." Sergeant Quon signed an "Employee Acknowledgement" indicating that he had read and understood the city's policy. Further, the city informed its officers in a meeting and in a written memorandum that the policy fully applied to pager messages.

The city's contract with Arch Wireless provided that each pager would be allotted 25,000 characters per month, after which the city was required to pay overage charges. Sergeant Quon exceeded the character limit amount three or four times. Sergeant Quon's superior, Lieutenant Steve Duke, was responsible for collecting payment of overage charges from the employees who exceeded the character limit. Lieutenant Duke informed Sergeant Quon that if he paid the overage charges, the city would not audit his text messages to confirm if they were work related. Sergeant Quon paid the city the overage charges each time he was requested to do so by Lieutenant Duke.

After a period where there were a significant number of overages, the chief of police ordered an investigation to determine whether officers who were assigned pagers (including Quon) were using them for work related communications, and, if so, whether the city needed to increase its character limit agreement with Arch Wireless. The city obtained the transcripts of Quon's text messages from Arch Wireless without having provided specific notice to Quon or the other senders or recipients of the text messages. It was discovered during the audit that Quon's text messages were mostly personal in nature, and that many of them were sexually explicit messages between Quon and his wife and between Quon and other city employees.

Sergeant Quon, his wife, and other city employees filed a complaint against Arch Wireless alleging violation of the Stored Communications Act for releasing the transcripts to the city without the senders' or recipients' consent, and against the city, the police department, and the chief, for violation of their right to be free from unreasonable searches and seizures pursuant to the Fourth Amendment of the U.S. Constitution, and for violation of their privacy rights under the California Constitution. The U.S. District Court for the Central District of California decided in favor of defendants, and plaintiffs appealed. While acknowledging that "[t]he extent to which the Fourth Amendment provides protection for the content of electronic communications in the Internet age is an open question," the 9th U.S. Circuit Court of Appeals reversed. Purportedly applying the "operational realities of the workplace" standard established in O'Connor v. Ortega, 480 U.S. 709, 717 (1987), a 9th Circuit panel held that the search of appellants' text messages violated their Fourth Amendment and California constitutional privacy rights because they had a reasonable expectation of privacy in the content of the text messages, and the search was unreasonable in scope because there were less intrusive means for the search than reading the content of the text messages. The city petitioned for panel rehearing and rehearing en banc, but the petition was denied (albeit with a strongly worded dissent authored by Justice Sandra S. Ikuta). In April 2009, the city petitioned the U.S. Supreme Court, and on Dec. 14, 2009 the Supreme Court decided to hear the matter.

The primary issues to be decided by the Supreme Court will be whether a government employee has a reasonable expectation of privacy in text messages transmitted on his city-issued pager where his employer has an official no-privacy policy but a non-policymaking middle manager announced an informal policy of allowing some personal use of the pagers, whether individuals who send text messages to a government employee's city-issued pager have a reasonable expectation that their messages will be free from review by the recipient's government employer, and whether the 9th Circuit properly utilized the "least intrusive means" test when it concluded the scope of the city's search was unreasonable. Government employers will be eagerly watching this case for how the high court analyzes the employer's formal policy versus informal policy issue. Whatever the Supreme Court's decision may be, it will have a significant impact on how public employers will craft, implement and enforce their policies regarding the use of government-owned technology.

The panel that wrote the 9th Circuit's opinion concluded that Quon's expectation of privacy in the content of the text messages on his city-issued pager was reasonable because the city's formal policy was not the "operational reality" of the Ontario Police Department, i.e., the lieutenant's "informal policy" was the "operational reality" instead. For the same reasons that Justice Ikuta noted in her dissent, it is quite possible that the Supreme Court will come to the opposite conclusion, considering that the city's official policy was clear and unambiguous, and it is reasonably foreseeable that a government employee's electronic communications might be discoverable by an investigation board, during litigation, or through a request under the California Public Records Act. As Justice Ikuta suggested in her dissent, a more reasonable conclusion could be that these are the "operational realities" of the workplace, not the informal and unauthorized statements of a lone lieutenant.

It is also possible that the Supreme Court will agree with the dissenters and conclude that the 9th Circuit incorrectly applied the "least intrusive means" test in the Fourth Amendment context. The 9th Circuit found that the city's reading of the content of Quon's text messages rendered the search unreasonable because less intrusive means for the search were theoretically available. However, as articulated by Justice Ikuta in her dissenting opinion, the Supreme Court and seven other circuit courts have expressly rejected the "least intrusive means" test in Fourth Amendment analysis. Therefore, so long as the city's search of Quon's text messages was reasonable under the circumstances, Ikuta argues, it did not violate his or the other individuals' Fourth Amendment rights. The Supreme Court will certainly address the "least intrusive means" test in its review of Quon.

Given the 9th Circuit's recent track record before the high court, there is a good chance that the holdings in Quon will not stand. A reversal of Quon would give public employers the ability to enforce their policies as written, without interference from lower-level supervisors' unauthorized policymaking. If the case is not reversed, however, public employers will be forced to spend time and precious resources policing the communications of supervisors and managers to ensure that they are not making statements, which could undermine official policy. Time will tell which of these situations is the "operational reality" that public employers will have to face.

Geoffrey S. Sheldon is a partner with the labor and employment law firm of Liebert Cassidy Whitmore. The firm represents public and private sector employers throughout California. James E. Oldendorph Jr. is an associate with the labor and employment law firm of Liebert Cassidy Whitmore. The firm represents public and private sector employers throughout California.