City of Ontario, California, v. Quon

The SCOTUS ruled unanimously today in City of Ontario v. Quon that a Police Department had the right to search text-messages sent by police officers on government-issued pagers.

The California City of Ontario (the City) had distributed pagers to some of its employees, including some police officers. Under the City’s contract with Arch Wireless, the company providing the text-messaging service to the City, each pager was allotted 25,000 characters per month, after which the City had to pay additional fees. Employees were requested to reimburse the City for overcharges.

Some police officers were given pagers, among them respondent Quon. Mr. Quon and some of his colleagues used more than 25, 000 characters for several months and thus had to pay overcharges, which they did. The Ontario Police Department (OPD) decided in 2002 to audit its text-messaging practices. In order to determine whether messages were work-related, or whether messages were personal, the City asked Arch Wireless to mail them the transcripts of all messages. Some of these messages turned out to be sexually explicit, and most of them were of personal nature. Respondent Quon was disciplined for violating OPD’s rules.

Indeed, the City had a “Computer Usage, Internet and E-Mail policy” that applied to all of its employees. It specified that the City “reserves the right to monitor and log all network activity including e-mail and Internet use, with or without notice. Users should have no expectation of privacy when using these resources. Respondent Quon had signed an acknowledgment of that policy in 2000. Thes policy did not explicitly cover text messages, but, during a 2002 staff meeting, police officers were told that messages sent on the pagers were considered e-mails.

Mr. Quon and some of his colleagues filed a suit against the City, alleging inter alia that, by obtaining a transcript of their text messages, the City had violated their Fourth Amendment rights and the Stored Communications Act (SCA). The District Court granted Arch Wireless‘ motion for summary judgment on the SCA claim, but denied petitioner’s motion for summary judgment on the Fourth Amendment claims, as it determined that Mr. Quon had a reasonable expectation of privacy in his text messages.

The District Court distinguished between two types of audit. First, an audit could be made to find out whether the officer was using his pager for personal reasons. It found that such an audit is not reasonable. Second, an audit can be made to find out whether the existing character limits were inadequate, thus leading to officers having to pay for work-related messages. Such an audit would be reasonable. At trial, the District Court held that petioners had not violated the police officer’s Fourth Amendment rights.

Mr. Quon appealed, and the Ninth Circuit reversed in part. Quon had a reasonable expectation of privacy in his text messages, and the search was not reasonable, as there were “less-intrusive means” by which the OPD could have verified the efficacy of the 25,000 character limit. The Ninth Circuit also concluded that Arch Wireless had violated the SCA by turning over the transcript of the messages to the City. Arch Wireless was an Electronic Communications Service provider (ECS) to the City. The City was a subscriber, not an addressee or intended recipient of the communications, and it thus violated the SCA, 18 § 2702 (a)(1). Unfortunately, the merits of the SCA claim were not before the SCOTUS.

The Ninth Circuit denied a petition for rehearing en banc. The Supreme Court granted certiorari.

Fourth Amendment

The Fourth Amendment states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .” It applies when the Government acts in its capacity as an employer.

In O’Connor v. Ortega, 480, U.S. 709, 717 (1987), the SCOTUS had held that “[i]ndividuals do not lose Fourth Amendment rights merely because they work for the government instead of a private employer.” O’Connor also set a two-step test to determine whether a government employment should have a reasonable expectation of privacy.

First, the court must determine on a case-by-case basis whether the government office is so open to fellow employees or the public that no expectation of privacy is reasonable. Second, if the employee indeed does have a reasonable expectation of privacy, the court must determine whether or not the employer may intrude on that expectation “for non investigatory, work-related purposes, as well as for investigations of work-related misconduct, should be judged by the standard of reasonableness under all the circumstances.” O’Connor, at 725–726.

Justice Scalia concurred in O’Connor, but would have dispensed with an inquiry into “operational realities” and would conclude “that the offices of government employees . . . are covered by Fourth Amendment protections as a general matter” Id., at 731. Justice Scalia would also have held “that government searches to retrieve work-related materials or to investigate violations of workplace rules—searches of the sort that are regarded as reasonable and normal in the private-employer context—do not violate the Fourth Amendment,” Id., at 732.

So there are two methods, but Justice Kennedy, who delivered today’s opinion, wrote that both methods would lead to the same results in the Quon case.

Did Quon have a reasonable expectation of privacy in his text messages?

Unfortunately, the SCOTUS shied away from answering that question.

The OPPD had a Computer Policy which extended to text messaging. Respondent contended that he had been told that an audit would not be necessary if he would pay for the overage, and thus had a reasonable expectation of privacy in the contents of his messages.

The SCOTUS expressed caution when having to consider “the concept of privacy expectations in communications made on electronic equipment owned by a government employer” as “the judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear” in cases such as Olmstead or Katz. Thus, “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.”

The message is clear: the SCOTUS does not want Quon to become the reference case setting the threshold for an employee’s expectation of privacy in their messages sent using the numerous communications devices provided to them by their employer. Indeed, the “rapid changes in the dynamics of communications” make it difficult to predict “how employees’ privacy expectations will be shaped by those changes or the degree to which society will be prepared to recognize those expectations as reasonable.“ So “a broad holding concerning employees’ privacy expectations vis-à-vis employer-provided technological equipment might have implications for future cases that cannot be predicted. It is preferable to dispose of this case on narrower grounds.“

Searches without warrant are per se unreasonable under the Fourth Amendment, but there are some exceptions, and the SCOTUs held in O’Connor that “special needs” of the workplace justify one such exception, if the search 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. Such was the case in this matter according to the SCOTUS.

The Ninth Circuit had reversed because the search was not reasonable, as there were many simple ways by which the OPD could have verified the efficacy of the 25,000 character limit, without intruding on respondent’s Fourth Amendment rights. The SCOTUS held that this approach was inconsistent with controlling precedents, as the SCOTUS has “repeatedly refused to declare that only the ‘least intrusive’ search practicable can be reasonable under the Fourth Amendment.” Vernonia School District , 515 U.S. 646, 663.

Since the search was motivated by a legitimate work-related purpose, and because it was not excessive in scope, it was reasonable under the O’Connor approach. The SCOTUS reverses the judgment of the Ninth Circuit.

Placing a GPS Tracking Device on a Car is a Seizure in Massachusetts

The Supreme Court of Massachusetts ruled this month in Commonwealth v. Connolly that a police officer must first obtain a warrant before placing a GPS tracking device on a car, because doing so constitutes a seizure under the Massachusetts Constitution.

When an electronic surveillance device is installed in a motor vehicle, be it a beeper, radio transmitter, or GPS device, the government's control and use of the defendant's vehicle to track its movements interferes with the defendant's interest in the vehicle notwithstanding that he maintains possession of it.

Right now, the government needs probable cause and a warrant to search a home or to seize personal property, but no search warrant is needed if the police have lawful access to the property or vehicle...

Found on the EPIC site: the New York Court of Appeals ruled that the police must first obtain a warrant before installing a GPS tracking device on an individual vehicle, but the Wisconsin Appeals Court authorized warrantless GPS surveillance by police.

According to the Wisconsin Court, The State aptly relies on United States v. Garcia, 474 F.3d 994 (7th Cir. 2007). The Garcia court concluded that attaching a GPS device to a car while the car was in a public place did not convert the subsequent tracking into a Fourth Amendment search.

The court reasoned:

[I]f police follow a car around, or observe its route by means of cameras mounted on lampposts or of satellite imaging as in Google Earth, there is no search. Well, but the tracking in this case was by satellite. Instead of transmitting images, the satellite transmitted geophysical coordinates. The only difference is that in the imaging case nothing touches the vehicle, while in the case at hand the tracking device does. But it is a distinction without any practical difference.

Like the Seventh Circuit, we discern no privacy interest protected by the Fourth Amendment that is invaded when police attach a GPS device to the outside of a vehicle, as long as the information obtained is the same as could be gained by the use of other techniques that do not require a warrant.

Sveum [defendant] might respond that, unlike Garcia, the police here did not attach the GPS device while his car was parked in a public place. However, the circuit court concluded that Sveum’s driveway was not constitutionally protected “curtilage,” and Sveum does not challenge this ruling or otherwise present a developed argument as to why the police engaged in a search or seizure by entering his driveway.

So the issue is still about the location of the vehicule at the time the beeper is attached: curtilage, or not curtilage? Do we have an expectation of privacy?

In the United States v. Knotts case, government agents had planted a “beeper” inside a five-gallon drum, which then allowed the agents to track the vehicle transporting that drum and determine that it had entered the defendant’s premises. The Court held that this did not invade any legitimate expectation of privacy and thus did not constitute a search or seizure under the Fourth Amendment: A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another. According to SCOTUS, our expectation of privacy is 'diminished' while being in a car: a car travels in plain view, on public roads.

It is only if the police enters a private dwelling such as a garage that a warrant is required. However, there is no need for warrant if the police already determined that the container contains contraband, because one has no expectation of privacy in contraband. Or if the device is placed into the container before the suspect buys it, no warrant is required because one has no expectation of privacy in a container before it is bought.

In United States v. Karo, 468 U.S. 1250 (1984), the facts were different than in the Knotts case. The container of ether, bought by the defendant to produce illegal drugs, had entered the home of the defendant at one point, and did not stay in the car all the time as in Knotts. The beeper had given the agents information about the suspect’s home, the beeper was monitored while it was inside a home, and therefore it is a search, and one needs a warrant, because the government had used the beeper to obtain 'information that it could not have obtained by observation from outside the curtilage of the house."

These cases should be monitored by everybody concerned about their locational privacy, and not only drug dealers. As the 7th Circuit pointed out in the Garcia case:

Technological progress poses a threat to privacy by enabling an extent of surveillance that in earlier times would have been prohibitively expensive. Whether and what kind of restrictions should, in the name of the Constitution, be placed on such surveillance when used in routine criminal enforcement are momentous issues that fortunately we need not try to resolve in this case.

Either using the notion of curtilage to define our expectation of privacy needs to be updated, or its definition must be expanded. We no longer live enclosed in the privacy of our homes, leaving our living room at 7.00 am only to go the the adjacent garage, go to our car, and leave for our enclosed office. My laptop, my cell phone, are part of my "curtilage" as I travel carrying them. Yet, they can now be so easily used as tracking devices.