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Reading is difficult. As a writer, I help the reader every way I can think of. As a reader, I work hard not to miss the big things in the middle of the road.

Wednesday, June 23, 2010

Won't Always Know It If They See It, But This Isn't It

A city government gets text pagers and service for some of its cops. The city asks— without a warrant—for a transcript of a cop’s texts. During work hours, few of the texts are work-related and some are sexually explicit. The city disciplines the cop. Did the provider violate the Stored Communications Act? Did the city or the provider violate the Fourth Amendment?
The Supreme Court of United States said no to both questions on June 17, 2010 in City of Ontario, California v. Quon, No. 08–1332. The court did not make any general rules as to what such violations might be.
Petitioner City of Ontario, California got pagers that could send and get texts from Arch Wireless. Arch charged Ontario a fixed price for a specified amount of use. More use would cost extra. Ontario let respondent Jeff Quon and other Ontario cops use the pagers. For several months, Arch charged extra for Quon’s use. Ontario asked for and got transcripts of some of Quon’s texts. Internal affairs investigated Quon. That officer redacted out Quon’s off-duty texts. Much of what remained was not work-related; some was sexually explicit. Ontario disciplined Quon. Quon and the people he was conversing with by text sued in federal district court for violation of the Fourth Amendment and the Stored Communications Act. Senior Federal District Judge Robert J. Timlin sent part of the case to trial. He appears to have ruled that if Ontario had audited to check if Quon had been wasting time, then that would have been improper. The jury okayed Ontario’s audit, finding that the audit was to make sure that the cops were not paying for work texts. The trial case resolved by judgment for Ontario and the other defendants. The Ninth Circuit reversed, holding that Ontario should have used less intrusive methods for the audit. It also held that Arch had violated the Stored Communications Act by giving Ontario the transcript.
In the Supreme Court Justice Kennedy wrote the opinion. All the other justices joined, except that Justice Scalia did not join part of the opinion. In a partial concurrence and concurrence in the judgment, he said that the question should not be whether the Fourth Amendment applies to messages on public employees’ employer-issued pagers, but whether it applies in general to such messages on employer-issued pagers. Justice Stevens concurred to highlight that the court did not decide whether the plurality opinion in O’Connor v. Ortega, 480 U.S.709 (1987) showed the right way to determine an employee’s reasonable expectation of privacy.
Do the texts of a public employee obtained without a warrant come in over objection? Not if the texts were gotten just to see if the employee is wasting time. Not if the seeking of them is over broad. Redaction of non-work-texts completely or in part is well advised. Of course, a warrant based on probable cause is a prosecutor’s best friend.


  1. This is my response to George Butel's comment on the post when it appeared in Facebook.
    Justice Scalia complained in concurrence in Quon that the question there should have been phrased as you did- I bet that he would reach the same conclusion as you did also.
    “Individuals do not lose Fourth Amendment rights merely because they work for the government instead of a private employer.” O’Connor v. Ortega, 480 U. S. 709, 717 (1987)(plurality opinion); see also id., at 731 (SCALIA, J., concurring in judgment); id., at 737 (Blackmun, J., dissenting).
    As to your car hypothetical I offer you another: a State determines that every time a person uses a toilet in that State, that use must be witnessed in the stall by some State employee. Surely this would contravene the Fourth Amendment as transmitted to the States through the Fourteenth Amendment.
    Here's a follow-up hypo: same as the first, only that the requirement is limited to on-duty employees of the State and all her political subdivisions. Would you not agree that this policy is as objectionable as the first, for the same reasons, despite the facts that these people are on the clock for the State, that the toilets and the stalls and the restrooms are State property, that employees may hide out in stalls to avoid working and waste the time that the State is paying for? (This is not to say that if a State employee showed up for work impaired without any apparent justification, that the State would have to get a warrant to get a urine sample from such a one. This would still be true if security protocols were in place to insure that the sample was bona fide (such as having the tester hand the sample container to the person outside a bathroom checked for things that would interfere with the test and taking the temperature of the sample).).
    In the Ortega case above, the employer took-- from Ortega's desk and file cabinets-- a Valentine's Day card, a photograph, a book of poetry sent to him by a former resident-- which was used against her when she tried to testify for him, billing data for his private patients and other things of his. Five federal Supreme Court justices held that the employer should have gotten a warrant then.
    "For a moment he was tempted to take . . . [a note] into one of the water-closets and read it at once. But that would be shocking folly, as he well knew. There was no place where you could be more certain that the telescreens were watched continuously."- George Orwell in 1984.
    The facts in Quon show that his employer did not require that the pagers be used only for its business. Quon had also acknowledged receipt of an email policy disclaiming employees' reasonable expectations of privacy in email on the employer's computers, etc., and that Quon had clearly been told that texts would be treated like email.
    My inability to get all details into a blog post is why I link to the opinion, so that readers can check my summary themselves.

  2. I fail to understand why an employer, whether public or private, cannot view such texts for the purpose of seeing if an employee is wasting time. If I let you drive my car for my business, do I not have the right to see what you do with it? If I let you use my computer, do I not have the right to have a keylogger installed to see what you used it for? I do not see that you have an expectation of privacy when you are using something that is only supposed to be used for official, not private, business. What I do not see stated here is what kind of agreement the cops had to sign or by using the service agreed to; surely if someone with a mind were in charge from the get-go, they would have had to sign something, like the EULA on software.

  3. This is George Butel, posting as ParrotSlave. I did think about the possibility of bathroom time-wasting when I asked the question. A primary function of bathrooms these days seems to be to do text messaging and the like (instead of reading books and magazines). In the case of hourly employees, if the employer utilizes proper timekeeping procedures, there would be no problem as far as the time itself is concerned. If you have to clock into a break before using the bathroom, the time record would determine whether you are "stealing" time, a separate issue than stealing a resource or service. It is easier for employees on a straight salary to waste time, but there again, another modern innovation, security, should prevent that: many corporations, and, I would hope, governmental entities, require employee id cards to be swiped at most doors, and it should not be difficult to figure out that an employee is spending 3 medically unnecessary hours a day in the john. One might argue that text messages sent while the employee is in the john would automatically provide an excuse to investigate the employee, and obviate the need for warrants, since the employee's presence there is, by definition, private: correlating that data with the time and date data from the employee's text pager or cell should not be difficult. This was not the case in Ortega, but I'm sure that employers, governmental and otherwise, will enter the 21st century eventually, having been forced by Osama bin Orwell.

  4. I'm not trying to be a hater, George, but isn't your argument a non sequitur? I agree with you that government employees' swiping their passes at bathroom doors does not offend the Fourth Amendment. Do you not agree that some ways that a government employer might keep track of its employees would offend against the Fourth Amendment? If so, then the question of which ways do and which ways don't might reasonably arise as an appropriate question for a court to answer.

  5. The opinion of 5 supreme court justices to the contrary notwithstanding, I do not believe that a person can expect his or her desk at a place of employment, whether public or private, to be "private." I use the term "his or her" as possessive pronouns, but in point of fact, the desk is owned by the employer. The space inside the desk is owned by the employer. The employee may choose to use a small part of the desk for personal reasons, as part of the logistics of everyday living, and employers normally allow and understand that, but that does not change the fact that it is all owned by the employer, who has every right to inspect it at any time the employer desires. The employee has no expectation of privacy. According to Katz, there IS no search if there is no expectation of privacy. The higher up in the company a person might be, the less the possibility that anyone could or would dare perform a search, but, technically, anyone other than an owner has no expectation of privacy.

    As to what would offend the Fourth Amendment, I would say, looking into my wallet, looking at my own cell phone, looking into my pockets, forcing me to strip, having a camera inside the bathroom stalls, would all be unreasonable, and I would have an expectation of privacy. Watching me at home through my laptop's webcam would be an unreasonable violation of my privacy, as would monitoring anything else I did at home or anywhere away from the employer's premises, except when on the employer's business. What could an employer do that would offend the 4th Amendment? Putting a keylogger on the work PCs is not unreasonable. Having cameras on the premises is not unreasonable. If people don't like working for others, tell them to start their own businesses.