Today, the Supreme Court in City of Ontario v. Quon, et al., decided not to address whether a city police officer had a reasonable expectation of privacy in text messages sent using an employer-provided pager. Rather than confront the issue, the Court declined to "elaborat[e] too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear." The Court also declined to "establish far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices." Instead, the Court assumed that the police officer had an expectation of privacy in text messages sent through his employer-provided phone and found that the warrantless search of his text messages was reasonable.
In 2001 and 2002, Jeff Quon, a police officer for the City of Ontario in California, allegedly violated the police department's policy regarding use of employer-provided pagers to send text messages. To investigate the violations, the police department reviewed Quon's text messages and eventually disciplined him for violating department regulations. Quon and several individuals who had sent personal text messages to Quon then sued the City for, in part, violating their Fourth Amendment right to be free from unreasonable searches and seizures and sued Arch Wireless, the text messaging provider, for violating the Stored Communications Act ("SCA") in disclosing the content of the text messages to the City.
The district court held that Quon had a reasonable expectation of privacy in the text messages, that the warrantless search of those messages was reasonable, and that Arch Wireless had not violated the SCA. The Ninth Circuit opinion agreed that plaintiffs had a reasonable expectation of privacy in the messages but found that the search was unreasonable because there were less intrusive measures the City could have taken, and therefore concluded that the City had violated the plaintiffs' Fourth Amendment rights. The Ninth Circuit also disagreed with respect to the SCA claim. The City appealed the Fourth Amendment ruling and Arch Wireless appealed the ruling under the SCA. The Supreme Court accepted review of only the City's appeal of the claim under the Fourth Amendment.
Before the Supreme Court, the parties disagreed about whether Quon had a reasonable expectation of privacy in text messages sent through his employer-provided pager. The Court did not resolve this issue and declined to adopt "[a] broad holding concerning employees' privacy expectations vis-a-vis employer-provided technological equipment [that] might have implications for future cases that cannot be predicted." Instead, the Court decided to "dispose of th[e] case on narrower grounds." To that end, the Court assumed that Quon had a reasonable expectation of privacy in the text messages and proceeded to hold, regardless of the analytical framework used to address the issue, that the warrantless search of the messages was reasonable and therefore did not violate the Fourth Amendment.
In so holding, the Court noted that it has “repeatedly refused to declare that only the ‘least intrusive’ search practicable can be reasonable under the Fourth Amendment … because judges engaged in post hoc evaluations of government conduct can almost always imagine some alternative means by which the objectives of the government might have been accomplished.” The court also considered whether the search of Quon's messages violated the Fourth Amendment rights of the individuals who sent personal text messages to Quon and held that because the search was reasonable as to Quon, "it necessarily follows that the other respondents cannot prevail."
The Quon opinion seems most notable for its reluctance to address the legal implications of emerging technologies. The Court was concerned that "[r]apid changes in the dynamics of communication and information transmission are evidenced not just in the technology itself but in what society accepts as proper behavior" and that "it is uncertain how workplace norms, and the law's treatment of them, will evolve." The Court also noted that it "ha[d] difficulty predicting how employees' privacy expectation will be shaped by [technological] changes or the degree to which society will be prepared to recognize those expectations as reasonable."