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Justices Uphold Search of City Employee's Text Messages

In a case that was watched by public education groups, the U.S. Supreme Court today upheld a California city's search of a police officer's government-provided pager that revealed sexually explicit text messages

But the court stopped short of issuing a broad ruling about the rights of public employees to be free of intrusive government searches of their communications devices and records.

"The court must proceed with care when considering the whole concept of privacy expectations in communications made on electronic equipment owned by a government employer," Justice Anthony M. Kennedy wrote for a unanimous court in City of Ontario, Calif. v. Quon (Case No. 08-1332). "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. ... At present, it is uncertain how workplace norms, and the law's treatment of them, will evolve."

The court upheld the city of Ontario's search of text-message transcripts it obtained for the pager issued to SWAT officer Jeff Quon. The city initiated the search to determine whether Quon was exceeding his monthly allotment of text messages with personal messages or, perhaps, whether officers needed more capacity for work-related messages.

The transcripts turned up many non-work-related text messages to and from Quon, and many that were sexually explicit. Quon was disciplined, and he sued the city, alleging a violation of his Fourth Amendment right to be free from unreasonable government searches.

A federal district court ruled for the city, but the U.S. Court of Appeals for the 9th Circuit, in San Francisco, held that Quon had a reasonable expectation of privacy in his text messages and that the city's search was unreasonable.

In his opinion for the court today, Justice Kennedy said Quon may, indeed, have a reasonable expectation of privacy in the messages on his government-issued pager. But even if he did, the city's search was reasonable at its inception and "reviewing the transcripts was reasonable because it was an efficient and expedient way to determine whether Quon's overages were the result of work-related messaging or personal use."

In a friend-of-the-court brief filed on the side of Ontario, the National School Boards Association, the California School Boards Association, and the National Association of Secondary School Principals had urged the high court to rule broadly that public employees do not have reasonable expectations of privacy in their electronic communications on government technology.

"At issue is a school district's ability to fulfill its obligation to ensure the safety of its pupils by searching the electronic communication of its employees," the brief said. For example, districts need to be able to search electronic communications for evidence of improper relationships between teachers and students, the brief said.

Justice Kennedy indicated that the courts, including the Supreme Court, will have to confront other cases involving public employees' expectations of privacy in their electronic communications.

"Cell phone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self-identification," Kennedy wrote. "That might strengthen the case for an expectation of privacy. On the other hand, the ubiquity of those devices has made them generally affordable, so one could counter that employees who need cell phones or similar devices for personal matters can purchase and pay for their own."

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