Privacy in the Wireless Age, Part 2 of 3: City of Ontario, California, et al. v. Quon as an Informative Case Study

Part 2 of 3: City of Ontario, California, et al. v. Quon as an Informative Case Study

City of Ontario, California, et al. v. Quon, 130 S.Ct. 2619 (2010) is a recent – and now seminal – example of how the ease of use provided by mobile technology is transforming the legal construct of “private” communications and what is truly a “private communication.”

In Quon, a SWAT team member of the Ontario Police Department had been issued a department-issued two-way pager. The messaging carrier was Arch Wireless Inc. which was subsequently acquired by USA Mobility Inc. The Ontario Police Department had a “no-privacy” policy, reserving the right to audit the SMS conversation chains. A lieutenant without policy-making authority permitted SWAT team members to use the SMS messaging service for personal use if the officers themselves paid the police department for any coverage charges. The city of Ontario eventually conducted an audit of Sgt. Jeff Quon’s messaging account revealing Quon had been sending personal messages (at times containing sexual content) to his wife as well as a police dispatcher/co-worker with whom Quon was alleged to be having an affair. In addition to his wife and dispatcher, Quon sent various messages to another SWAT team officer, Sgt. Steve Trujillo, which were of a personal nature.

Quon, his wife, and Trujillo filed suit against the city of Ontario and the SMS carrier, Arch Wireless. The complaint was filed in federal court, claiming certain privacy violations under the Fourth Amendment and the corollary contained in California’s constitution. The complaint also alleged Arch Wireless violated the federal Stored Communications Act for being the SMS carrier that divulged the paging content of the text messages without prior consent from Quon.
Quon was extensively litigated before the U.S. District Court, resulting in a jury verdict that led to absolving the police department of any privacy violation. The 9th U.S. Circuit Court of Appeals vacated the jury verdict and ruled the city of Ontario’s review of the SMS content violated Quon’s Fourth Amendment right to privacy. The 9th Circuit relied upon the fact that Quon has been informed by the department that the content of his messages would not be audited if he paid overages on the department’s paging account attributed to his personal use.

The U.S. Supreme Court overruled the 9th Circuit, reversing and remanding the case to the District Court. The Court held, inter alia, that “[b]ecause the search was motivated by a legitimate work-related purpose, and because it was not excessive in scope, the search was reasonable under the approach of the O’Connor plurality.” Therefore, Quon appears to suggest that so long as the intention of the search into employee communications is legitimate, there is not necessarily a violation of privacy.

** This is the second part in a three-part series which comprise an abridged version of the article “Increase of Wireless Communication Creates New Privacy Issues,” written by Daniel Garrie and published in the Los Angeles Daily Journal.