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Warrantless Government Search of Pager Transcript Reasonable, as Furthering Work-Related Purpose

City of Ontario v. Quon, USSC No. 08-1392, 6/17/10

Assuming without deciding that police officer Quon had a reasonable expectation of privacy in the text messages of his department-issued pager, the Court concludes that the warrantless review of Quon’s pager transcript was reasonable because it was motivated by a legitimate work-related purpose and was not excessive in scope.

The 4th amendment came into play because Quon’s employer was a government agency, but the proper analytical framework is up in the air. In O’Connor v. Ortega , 480 U. S. 709 (1987), a plurality held that privacy expectations should resolved case-by-case; and that even legitimate expectations of privacy could be overcome by the employer’s “noninvestigatory, work-related purposes,” 718, 725-26. The Court has no need inn this case to fashion a majority rule: “The case can be decided by determining that the search was reasonable even assuming Quon had a reasonable expectation of privacy. … Prudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices.” Fair enough. Speaking of prudence: might be wise to keep in mind that employer-issued devices don’t belong to the employee. Oh, and if despite the risks, you find yourself utterly compelled to engage in sex talk while on your employer’s clock, you shouldn’t use the employer’s device to get those kicks. Not unless you want to increase the chances of getting caught. In any event, here’s the operative principle, culled from the O’Connor plurality:

Under the approach of the O’Connor plurality, when conducted for a “noninvestigatory, work-related purpos[e]”or for the “investigatio[n] of work-related misconduct,” a government employer’s warrantless search is reasonable if it is “‘justified at its inception’” and if “‘the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of’” the circumstances giving rise to the search. 480 U. S., at 725–726. The search here satisfied the standard of the O’Connor plurality and was reasonable under that approach.

The pager search was undertaken because usage was exceeded contracted-for limits, and there was “a legitimate interest in ensuring that employees were not being forced to payout of their own pockets for work-related expenses, or on the other hand that the City was not paying for extensive personal communications. … As for the scope of the search … it was certainly reasonable for OPD to review messages for just two months in order to obtain a large enough sample to decide whether the character limits were efficacious.”

From OPD’s perspective, the fact that Quon likely had only a limited privacy expectation, with boundaries that we need not here explore, lessened the risk that the review would intrude on highly private details of Quon’s life. OPD’s audit of messages on Quon’s employer-provided pager was not nearly as intrusive as a search of his personal e-mail account or pager, or a wiretap on his home phone line, would have been. That the search did reveal intimate details of Quon’s life does not make it unreasonable, for under the circumstances a reasonable employer would not expect that such a review would intrude on such matters. The search was permissible in its scope.

It follows that the warrantless search need not be the “least intrusive” possible; it need only be reasonable. Finally, the fact that a search might have violated a statute (in this instance, the federal Stored Communications Act), doesn’t make it per se unreasonable.

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