<i><b>Online Exclusive:</b></i> Text Search Reasonable, Says Supreme Court

In its first ruling on the privacy of workplace texting, the U.S. Supreme Court on June 17 said that a city audit of an employee's messages on a city-owned pager was a reasonable search under the Fourth Amendment.

The unanimous ruling in City of Ontario, California v. Quon sidestepped whether police Sergeant Jeff Quon, the employee in the case, had a reasonable expectation of privacy in his text messages, some of which turned out to be private and sexually explicit.

But Justice Anthony Kennedy, writing for a unanimous Court, said the city's search ' aimed at determining whether city employees in general needed a higher number of minutes on their pagers ' was reasonable under any view of the Fourth Amendment right to protection from unreasonable searches.

Even though the case involved a public workplace where the Fourth Amendment would be in full force, employment lawyers say the ruling underscores the need for policies on privacy in private work settings as well.

'It's critically important to have very clear policies, to communicate them to employees, and to make searches no more intrusive than necessary,' Mayer Brown partner John Nadolenco says.

Quon challenged the search, as did some of the people with whom he communicated. A jury in the U.S. District Court for the Central District of California found that the search was done for work-related reasons and did not violate the Fourth Amendment. The U.S. Court of Appeals for the Ninth Circuit reversed, finding that the search was unreasonable and too broad. The high court reversed the Ninth Circuit.

Kennedy cautioned against deciding too quickly the level of privacy that new communications technologies deserve, noting that 'rapid changes in the dynamics of communication and information transmission are evident not just in the technology itself but in what society accepts as proper behavior.' Cellphone and text-message communications, he noted, 'are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self-identification.' That would argue for high expectations of privacy, Kennedy said, but the fact that employers promulgate policies about private use of company-owned devices would dictate a lower level of privacy.

Although the Court was inconclusive on the extent of privacy rights involved, the ruling was full of references to privacy interests and the need for searches to be limited and work-related. 'The search was motivated by a legitimate work-related purpose,' Kennedy wrote, adding that 'it was not excessive in scope.' Justice Antonin Scalia concurred in the result of the decision, but wrote separately to ridicule Kennedy for his 'exaggerated' concern about assessing new modes of expression.

'Applying the Fourth Amendment to new technologies may sometimes be difficult, but when it is necessary to decide a case we have no choice,' Scalia wrote. 'The-times-they-are-a-changin' is a feeble excuse for disregard for duty.'

But some lawyers applauded the Court's caution especially after the April 19 oral argument in the case, in which several justices showed their shortcomings in high-tech expertise. At one point, Chief Justice John Roberts Jr. asked what was the difference between an e-mail and a pager. (See, 'Text Messaging Heard By the Supreme Court' in the May issue of Internet Law & Strategy; www.ljnonline.com/issues/ljn_internetlaw/8_5/news/153683-1.html.)

'It was very wise of the Court not to delve too deeply into a world of technology that they admitted at oral argument was a bit foreign to them,' says Morgan, Lewis & Bockius partner Chris Parlo.

In its first ruling on the privacy of workplace texting, the U.S. Supreme Court on June 17 said that a city audit of an employee's messages on a city-owned pager was a reasonable search under the Fourth Amendment.

The unanimous ruling in City of Ontario, California v. Quon sidestepped whether police Sergeant Jeff Quon, the employee in the case, had a reasonable expectation of privacy in his text messages, some of which turned out to be private and sexually explicit.

But Justice Anthony Kennedy, writing for a unanimous Court, said the city's search ' aimed at determining whether city employees in general needed a higher number of minutes on their pagers ' was reasonable under any view of the Fourth Amendment right to protection from unreasonable searches.

Even though the case involved a public workplace where the Fourth Amendment would be in full force, employment lawyers say the ruling underscores the need for policies on privacy in private work settings as well.

'It's critically important to have very clear policies, to communicate them to employees, and to make searches no more intrusive than necessary,' Mayer Brown partner John Nadolenco says.

Quon challenged the search, as did some of the people with whom he communicated. A jury in the U.S. District Court for the Central District of California found that the search was done for work-related reasons and did not violate the Fourth Amendment. The U.S. Court of Appeals for the Ninth Circuit reversed, finding that the search was unreasonable and too broad. The high court reversed the Ninth Circuit.

Kennedy cautioned against deciding too quickly the level of privacy that new communications technologies deserve, noting that 'rapid changes in the dynamics of communication and information transmission are evident not just in the technology itself but in what society accepts as proper behavior.' Cellphone and text-message communications, he noted, 'are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self-identification.' That would argue for high expectations of privacy, Kennedy said, but the fact that employers promulgate policies about private use of company-owned devices would dictate a lower level of privacy.

Although the Court was inconclusive on the extent of privacy rights involved, the ruling was full of references to privacy interests and the need for searches to be limited and work-related. 'The search was motivated by a legitimate work-related purpose,' Kennedy wrote, adding that 'it was not excessive in scope.' Justice Antonin Scalia concurred in the result of the decision, but wrote separately to ridicule Kennedy for his 'exaggerated' concern about assessing new modes of expression.

'Applying the Fourth Amendment to new technologies may sometimes be difficult, but when it is necessary to decide a case we have no choice,' Scalia wrote. 'The-times-they-are-a-changin' is a feeble excuse for disregard for duty.'

But some lawyers applauded the Court's caution especially after the April 19 oral argument in the case, in which several justices showed their shortcomings in high-tech expertise. At one point, Chief Justice John Roberts Jr. asked what was the difference between an e-mail and a pager. (See, 'Text Messaging Heard By the Supreme Court' in the May issue of Internet Law & Strategy; www.ljnonline.com/issues/ljn_internetlaw/8_5/news/153683-1.html.)

'It was very wise of the Court not to delve too deeply into a world of technology that they admitted at oral argument was a bit foreign to them,' says Morgan, Lewis & Bockius partner Chris Parlo.