Oral arguments in Quon Supreme Court case suggest narrow ruling is likely

The Supreme Court heard oral arguments in City of Ontario v. Quon yesterday, and initial reactions in legal circles on the way the plaintiff’s counsel argued the case and the questions raised by the justices seem to suggest a narrow ruling is likely in this case, rather than one setting a significant precedent or establishing doctrine on employee expectations of privacy in the workplace. While we suggested such an outcome in advance of the session, the transcript released by the Court shows that the justices spent relatively little time on the distinction between the City’s official written policy regarding personal use of city-owned computing resources and the oral policy in place between Quon and other members of the SWAT team and their immediate supervisor. While plantiff’s counsel offered two arguments to the Court:  first, that contrary to the 9th Circuit’s finding in the case, Quon had no reasonable expectation of privacy for the content of text messages sent using his city-owned and -issued pager; and second, that even if he had such a reasonable expectation, the city’s inspection of his text messages was a reasonable search. Both Chief Justice Roberts and Justice Ginsburg suggested that if you take as a given that the wireless provider with which the city contracted for the pager service, Arch Wireless, violated the Stored Communications Act (SCA) by turning over transcripts of the messages sent using the pager, then the SCA would help bolster Quon’s claim of a reasonable expectation of privacy and would call into question the legality of the city subsequently looking at those transcripts, even if the city was not itself in violation of the law. To his credit, plaintiff’s counsel seemed well prepared for that line of questioning, citing recent precedents where the Supreme Court has held that the fact a law was violated is insufficient to produce a reasonable expectation of privacy.

Parties arguing in defense of Quon did address the issues with the city’s official policy, suggesting that the best way for an employer to eliminate reasonable expectations of privacy among employees is to make it clear through comprehensive and explicit policies that no such expectation exists. The Court did not appear willing to accept this approach, noting not only the need established in O’Connor v. Ortega that “Given the great variety of work environments in the public sector, the question whether an employee has a reasonable expectation of privacy must be addressed on a case-by-case basis.” This line of thinking also echoing the reasoning of the New Jersey state Supreme Court in its recent Stengart ruling that even a carefully crafted and explicit policy cannot invalidate all potential employee claims to privacy of personal communications.

Counsel for the defense (Quon) did zero in on the understanding Quon and his co-workers had with their supervisor, arguing that that alone was sufficient to constitute a reasonable expectation of privacy, even if it was contrary to the official city policy. The Court, especially Justice Breyer, pressed defendant’s counsel to explain why reading the text messages wasn’t a logical, reasonable way to satisfy the city’s desire to know how much of Quon’s pager messaging was personal and how much was work related. Chief Justice Roberts seemed amenable to some of the alternative methods the city could have used that didn’t involve actually inspecting the content of the messages, but Breyer and other justices seemed unsatisfied with defense counsel’s responses. Plaintiff’s counsel opted to reserve his last three minutes to rebut the defense, which he tried to do by suggesting that there was not in fact any difference in terms of privacy expectations between the official policy and the informal one, with the point once again being that no reasonable expectation of privacy should be afforded Quon.

Regardless of the breadth (or lack thereof) of the final ruling, it seems that the defense may have the harder case to make, inasmuch as it has to convince the Court that the expectation of privacy was reasonable and that even if that expectation as found by the 9th Circuit is upheld, that the actions by the city to look at the text messages also constituted and unreasonable search. For its part, the city may win reversal if the Court accepts its position on either the (absence of a) reasonable expectation of privacy or on the reasonableness of the search.