Justices say government employers can audit employee texts

The U.S. Supreme Court on Thursday ruled that a police department had the authority to search an officer’s text messages that were sent using a department-issued pager.

Police Sergeant Jeff Quon could not reasonably "conclude that his messages were in all circumstances immune from scrutiny," wrote Justice Anthony M. Kennedy for the court. Though the court’s ruling was unanimous, two justices wrote separate opinions explaining their reasoning.

The case, City of Ontario v. Quon, drew the interest of media organizations, who feared that a decision upholding privacy interests in information on government communications systems would negatively affect access under open records law.

The case arose when the Ontario Police Department in California searched Quon’s text messages to determine why he was repeatedly exceeding the monthly text message limit. The department stated that it wanted to know whether the existing message limit was too low or whether it was being exceeded due to personal messages.

The search only covered messages Quon sent while he was on duty, but the review still uncovered many personal messages, some of which were sexually explicit. The department concluded that he had violated an policy that prohibited pursuing personal matters while on duty.

The court found that the search did not violate Quon’s constitutional rights "because the search was motivated by a legitimate work-related purpose, and because it was not excessive in scope, the search was reasonable."

The justices added that because the pagers were issued to SWAT Team members to help them respond to crises, Quon should have anticipated that his on-the-job communications may be reviewed for multiple reasons – such as if the department decided to audit messages to evaluate the team’s performance.

Quon was also aware of the police department’s written policy that text messages were considered public information, although a police officer had also told Quon that if he paid the fee for exceeding the monthly text message limit, the messages would not be audited.

Kennedy emphasized that the court’s ruling was limited in scope because of the rapidly changing nature of technology.

"The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear," he wrote, adding that the court cannot predict how privacy expectations will be shaped by technology changes.

The Reporters Committee for Freedom of the Press previously joined a media organization amicus brief in the case, which argued that under the state open records act, public bodies must disclose communications like those at issue in this case.