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The Supreme Court on Monday leaps into the high-tech world of text messaging in a challenge with potentially huge implications for the privacy rights of senders and receivers and for workplace communications. City of Ontario, Calif. v. Quon, one of two cases leading off the final round of oral arguments this term, is the Court’s first foray into workplace monitoring of electronic and digital communications. The city asks the justices whether a member of its police SWAT team had a Fourth Amendment “reasonable expectation of privacy” in text messages transmitted on his SWAT pager. The case also raises the issue of whether the senders of messages to the SWAT pager had their own reasonable expectation that the city would not review their messages. “It’s a new area. It’s complicated, and the stakes are high given the shift in how people communicate,” said Andrew Pincus, partner in the Washington office of Mayer Brown, who filed an amicus brief supporting the police officer, Jeff Quon, on behalf of civil liberties and consumer groups. The Quon case is paired on Monday with Christian Legal Society v. Martinez, a challenge to the non-discrimination policy that the University of California Hastings College of Law applies to student groups seeking recognition for funding and services. The Court will hear six additional cases in the next two weeks before wrapping up the term’s arguments, including important challenges involving arbitration, genetically engineered crops and public disclosure of the identities of ballot petition signers. The Quon challenge is being watched closely by a broad range of litigators — criminal defense, intellectual property, civil rights, employment and others — because the Court’s decision could have significance not just for public employers, such as Ontario, but for private ones, and for discovery of evidence as well. “I do think the footprint of the Supreme Court here, given the deference other courts will give to any decision, is potentially outside the Fourth Amendment-public employer context,” said Jonathan Moskin, partner in the New York office of Foley & Lardner. “Courts already have been routinely citing to the 9th Circuit decision in Quon in cases involving private employers and their employees,” explained Moskin, who represented the New York Intellectual Property Law Association in its amicus brief supporting the police officer. SEXY TEXTS Since roughly December 1999, Ontario has had a written policy warning employees not to expect privacy in their communications on city-owned computers and associated equipment. The policy, which was signed by Quon, allowed limited “light” personal use and reserved the right to monitor and log all network activity. In 2001, the city obtained pagers from a wireless operating company, which contracted to maintain the system. Quon and other SWAT team members were given the pagers. They were told by supervisors that the text messages were considered e-mail and were subject to the city’s no privacy policy and possible audit. Quon exceeded the character limit on his pager several times. A supervisor told him that he would not audit the overages to see if they were work-related but that Quon could pay for the overages, which Quon did. While on duty, Quon used his department-issued text-messaging pager to exchange hundreds of personal messages — many sexually explicit — with, among others, his wife, his girlfriend and a fellow SWAT sergeant, according to the city’s high court counsel, Kent Richland, partner in Los Angeles’ Greines, Martin, Stein & Richland. In August 2002, after Quon and another officer had exceeded the character limit, the police chief ordered a review of their message transcripts to determine, the city contended, if the limit was too low. The review showed that Quon received on average 28 transmissions during his shift, only three of which were work related. He was reported for violating the department’s policy on use of the pagers. Quon, his wife, the girlfriend and his colleague sued the city, the police department and certain officials in federal district court in the Central District of California. They alleged their Fourth Amendment rights were violated by the review of the text messages. The district court found that Quon had a reasonable expectation of privacy under a test announced by the Supreme Court in its 1987 decision, O’Connor v. Ortega. Under that test, a government employee’s expectation of privacy must be one “that society is prepared to consider reasonable” under the “operational realities of the workplace.” Applying that standard, the court said Quon’s expectation was reasonable because a supervisor had said he would not enforce the general computer policy. The court then submitted to a jury the question of whether the city’s review of the messages was reasonable under the circumstances. The jury said yes, because the purpose was to determine the effectiveness of the character limit, not to ferret out misconduct. Quon appealed the jury verdict on the reasonableness of the search. The 9th U.S. Circuit Court of Appeals reversed, finding that the scope of the search was unreasonable because it was excessively intrusive and that Quon and the other three plaintiffs all had a reasonable expectation of privacy in their messages. ARGUING REASONABLENESS In the Supreme Court, Richland, the city’s counsel, argues in his brief that the 9th Circuit “dramatically” undercut O’Connor’s “operational realities of the workplace” standard by allowing an employer’s explicit, no-privacy policy to be abrogated by a lower-level supervisor’s informal arrangement. “No-privacy policies like this one are prevalent and vital to public employers for maintaining the security and efficiency of electronic communications equipment,” contended Richland, who is supported by the United States, a host of city and county government associations, and school board associations, newspaper publishers and First Amendment coalitions. Richland also argues that California’s public records law diminished Quon’s privacy expectation because the public could get access to those text messages. He also challenges the 9th Circuit’s ruling that the city’s search was unreasonable. The appellate court, argues Richland, applied a “less intrusive methods” analysis that has been rejected by the justices and other circuits in the Fourth Amendment context. The 9th Circuit compounded its errors, he adds, by extending Fourth Amendment protection to the three other plaintiffs who exchanged text messages with Quon. Those three persons, he said, “who knowingly exchanged text messages with a police officer on his police department pager — rather than on a privately owned pager — could not reasonably expect that their messages would be free from the department’s review in its capacity as a public employer.” Solicitor General Elena Kagan agrees, saying, an employee has no reasonable ground to expect privacy in his employer-provided equipment when the employer has warned him not to have that expectation. The acts of a subordinate officer, she adds, do not bind an entire city. And just as a valid search of someone’s papers often extends to papers sent by another person, Kagan tells the Court, the three other plaintiffs had no right to object once their messages were delivered to Quon’s pager. Quon’s counsel, Dammeier, counters that the city “never bothered to revise its computer policy to include the text-message pagers, nor did it ever issue a written directive to its employees.” The low-level supervisor was the only individual to announce a no-privacy policy for the pagers and he modified the computer policy by stating he would not audit the text-messages as long as personnel paid for any overage charges. As for the other plaintiffs’ privacy expectations, Dammeier said the 9th Circuit’s decision was a “rather straightforward and a practical application of the rule of law.” That court likened text messages to telephone calls and letters in finding a reasonable expectation of privacy. “If the Supreme Court reverses, as is likely, it will be important for private sector employees to see exactly how the Court approaches the issue,” said employment litigator Daniel Prywes, partner in the Washington office of Bryan Cave. Prywes said the traditional rule for the private sector is that employers have broad rights to monitor their employees electronic communications provided they give them advance notice that they have that right. “But all kinds of exceptions are being given by various courts,” he added. “The hole in donut keeps getting bigger and bigger. The decision in Quon may provide some pushback against this trend in the lower courts and state courts.” Moskin and others supporting Quon are urging the Court to move slowly and to decide only this case on its facts. “The law here is evolving so rapidly and there are inconsistencies,” he said. “Let the lower courts continue to resolve this. It’s too soon to cast any judgment on what expectations of privacy society reasonably expects.”

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