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Electronic Privacy in the Government Workplace and the City of Ontario, California V The Catholic University of America, Columbus School of Law CUA Law Scholarship Repository Scholarly Articles and Other Contributions Faculty Scholarship 2012 Electronic Privacy in the Government Workplace and the City of Ontario, California v. Quon: The Supreme Court Brought Forth a Mouse Clifford S. Fishman The Catholic University of America, Columbus School of Law Follow this and additional works at: https://scholarship.law.edu/scholar Part of the Criminal Procedure Commons Recommended Citation Clifford S. Fishman, Electronic Privacy in the Government Workplace and the City of Ontario, California v. Quon: The Supreme Court Brought Forth a Mouse, 81 MISS. L. J. 1359 (2012). This Article is brought to you for free and open access by the Faculty Scholarship at CUA Law Scholarship Repository. It has been accepted for inclusion in Scholarly Articles and Other Contributions by an authorized administrator of CUA Law Scholarship Repository. For more information, please contact [email protected]. ELECTRONIC PRIVACY IN THE GOVERNMENT WORKPLACE AND CITY OF ONTARIO, CALIFORNIA V. QUON: THE SUPREME COURT BROUGHT FORTH A MOUSE Clifford S. Fishman* INTRODUCTION ............................... ........ 1361 1. THE FOURTH AMENDMENT AND RELEVANT FEDERAL STATUTES .......................................1363 A.Fourth Amendment ................... ...... 1363 1. Reasonable Expectation of Privacy.... ........ 1363 2. Situations in which a Person Surrenders his Reasonable Expectation of Privacy ............... 1366 B. Statutory Regulation of Surveillance of * Professor of Law, The Columbus School of Law, The Catholic University of America. B.A., University of Rochester, 1966; J.D., Columbia Law School, 1969. From 1969 to 1977, Professor Fishman served as an Assistant District Attorney in the New York County District Attorney's Office and as Chief Investigating Assistant District Attorney in New York City's Special Narcotics Prosecutor's Office, where he tried dozens of cases, drafted and supervised the execution of more than forty wiretaps and eavesdrops and, among other triumphs, oversaw the purchase of the most expensive pound of pancake batter in the history of American law enforcement. Having cleaned up New York City's drug problem, he joined the faculty at Catholic University in 1977. He is the co-author of two multi-volume legal treatises which, together with his eighteen prior law review articles, contain more footnotes than any rational human being would ever read in one lifetime, let alone write. Professor Fishman expresses his gratitude to the National Center for Justice and the Rule of Law at the University of Mississippi School of Law, and to Tom Clancy, its director, for the honor of being chosen to give the James Otis Lecture in October, 2010. This Article is an outgrowth of that lecture. Prof. Fishman also wants to thank his treatise co-author, Anne T. McKenna; his research assistant, Eduardo Bertran, J.D., C.U.A. Law School, 2011; C.U.A. Law librarian Steve Young; and his C.U.A. faculty colleagues, Professors Cara Drinan and Mary Leary, for their assistance in researching and drafting this Article. Thanks, too, go to his administrative assistant, Julie Kendrick, for her help in this and in every other professional project he undertakes. Finally, Professor Fishman also wishes to acknowledge Washington, D.C.'s NFL, NBA, and MLB franchises, whose persistent mediocrity over the past few decades eliminated many distractions that might have interfered with his footnote production. 1359 1360 MISSISSIPPI LAW JOURNAL [VOL. 81:5 Communications ................................ 1368 1. Title III ............................. ..... 1368 2. The ECPA and SCA..... ................... 1369 3. Other Legislation .................. ........ 1370 C. Measuring the Validity of a Search ............. 1371 1. The Warrant Requirement and Probable Cause.....................................1371 2. Administrative, Regulatory, and Other "Special Needs" Searches ................ ...... 1373 II. O'CONNOR V. ORTEGA.. ............................ 1376 A. Facts and Issues ................................. 1376 B. Reasonable Expectation of Privacy .............. 1379 C. Appropriate Standardto Determine "Reasonableness"........................1380 1. Justice O'Connor's Plurality Opinion ..... ..... 1380 2. Justice Scalia's Concurrence. ................. 1382 3. Dissent ...................... ...... ...... 1383 III. CITY OF ONTARIO V. QUON............... ........... 1384 A. Facts .............................. ..... 1384 B. The Technology.................... ........ 1388 C. The Ninth Circuit Decision ............. ...... 1388 D. The Supreme Court Decision: Overview ..... ..... 1389 E. The Majority Opinion ................. ...... 1391 1. Three Assumptions .................. ...... 1391 2. The OPD Review of the Transcripts was Reasonable; Applying the O'Connor Plurality Approach ........................... ....... 1392 3. Availability of "Less Intrusive Means".... ..... 1394 4. The Stored Communications Act (SCA) and the Fourth Amendment .................. ..... 1399 5. Conclusion; Lip Service Deference to Justice Scalia's O'Connor Concurrence ...... ..... 1403 F. Justice Scalia's Quon Concurrence .............. 1404 IV. WHAT THE COURT DID NOT DECIDE, AND WHY: EXPECTATIONS AND STANDARDS ...................... 1405 A. MeasuringExpectations of Electronic Privacy............1406 1. The Majority's Waffle: Part III.A of the Court's Opinion ....................... ...... 1406 2. Justice Scalia's "I Told You So" ......... ........ 1408 2012] ELECTRONIC PRIVACY 1361 3. Evaluation; Comparing the Two Approaches........1409 4. The Need for Legislation.. ....................... 1415 B. Suppose the Jury Had Found That the Review Was to Investigate Suspicions of Quon's Wrongdoing.....1418 C. Privacy Expectations of Those With Whom Quon Texted .................................... 1419 CONCLUSION ...................................... 1424 APPENDIX. QUON: A USER'S MANUAL .................. 1427 Many years ago a mighty rumbling was heard from a mountain, which was said to be in labour. Thousands of people flocked from far and near to see what it would produce. After a long time of waiting in anxious expectation-out popped a mouse!1 INTRODUCTION A company gives an employee (E) a cellular phone to use on company matters. The phone is programmed to send and receive text messages. E is told that he may send and receive up to a certain number of alphanumeric characters per month, with no cost to E. The company makes a point of informing E that it reserves the right to review his use of the phone, including the text messages he sends and receives. Informally, however, his supervisor tells him that the company will not enforce this policy; instead, personal use of the phone and text messaging will be permitted, so long as E pays for any text message use that exceeds the contractual character limit per month. Does this informal understanding give E a right to privacy in the personal text messages he sends and receives? If so, and the company decides to review E's text messages, does it matter why the company did so? And what about the people who send text messages to E, and receive messages from him-do they have any right to privacy against the company's review of the messages? Does it matter whether those with whom E texts are aware that E is using a company phone, rather than his personal phone? Suppose instead E works for a government agency-local, city, state, or federal. Would the privacy issues raised in the 1 The Mountain in Labour, in AESOP'S FABLES 31 (Jack Zipes ed., 1992). 1362 MISSISSIPPI LAW JOURNAL [VOL. 81:5 previous paragraph be resolved any differently? If so, how and why? The Supreme Court confronted these issues in 2010 in City of Ontario v. Quon.2 Sergeant Jeff Quon sued his employer, the Ontario Police Department, when he learned that the OPD reviewed the text messages he had sent and received on a department-issued pager.3 The Ninth Circuit entered judgment for Quon; 4 the city appealed to the Supreme Court. The Court's decision in that case touches on a wide range of social, technological, and legal issues, including: (1) the role various electronic communications media play in our lives; (2) whether a government employee has a reasonable expectation of privacy when he uses equipment or systems provided by the government agency for which he or she works; (3) when, assuming such an expectation exists, the government employer is nevertheless justified in intruding upon that privacy; and (4) the legal standard against which those expectations and justifications are to be measured. Quon is the third time the Supreme Court has addressed the issue of a government employee's right to workplace privacy from the agency that employs him or her. The first was O'Connor v. Ortega,5 decided in 1987. That decision recognized an employee's rights to privacy, but provided no clear guidance as to how those rights are to be measured; 6 nor did the second decision, National Treasury Employees Union v. Von Raab,7 decided in 1989, because although Van Raab did involve the employer-employee relationship, it is better understood when viewed from a different legal perspective. 8 When the Court granted cert in Quon, 2 City of Ontario v. Quon, 130 S. Ct. 2619, 2630 (2010). Quon involved an alphanumeric pager, rather than a cell phone with texting capability. Cell phones with text-message capacity are probably now far more widely owned and used than pagers, and the issues presented by the text
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