1. The Supreme Court and the Ninth Circuit reached different conclusions on the issue of the proper scope of the search. Which one do you think is the better approach? Why?

2. Both courts agreed that Quon did not have a reasonable expectation of privacy in the text messages, despite the fact that his boss told him that the messages would be private if he paid the overages. What statements or acts by an employee, in your opinion, would be necessary to create an expectation of privacy in the messages? Where is the line drawn?

3. Would this case, in your opinion, have been decided differently if it had involved an employer-supplied communication device other than a pager? If so, how?

4. Do you agree with the statement that an audit of text messages is less intrusive than a phone wiretap? Why or why not?

5. The Court decided the case on narrow grounds, purposefully stopping short of pronouncing broadly applicable rules for electronic communications. If they had taken on the task of a broadly applicable rule, what, in your opinion, should they have said?

Issue: Do government employees have an expectation of privacy with regard to their text messages sent on employer-issued phones? Does an employer audit of government employee text messages violate their Fourth Amendment protection against unreasonable searches and seizures?

Facts: The City of Ontario, California, acquired pagers that could send and receive text messages. The pagers were issued to Quon and other police officers, who were told that the city-provided service plan provided a monthly limit on the number of characters sent and received each month. Overages had to be paid by the employees. When the employees exceeded their monthly limits for several months, the police chief sought to determine if the overages being paid by the police officers were for city-related business or personal messages.

Based on transcripts sent by the service provider, the police chief discovered that Quon had been sending sexually explicit messages. He also learned that only a few of Quon’s on-duty messages were actually related to police business; so Quon was disciplined.

Quon and other officers sued, alleging violations of the Fourth Amendment search and seizure provisions. The trial court ruled that Quon and the police officers had an expectation of privacy in the content of the messages, but it dismissed the Fourth Amendment claims because the jury found that the police chief’s actions were motivated by the legitimate reason of determining whether the officers were unfairly paying for work-related overages. The Ninth Circuit, however, reversed, concluding that the police chief’s motives were not determinative because he could have used less intrusive tactics than an audit of the messages.

Decision: The U.S. Supreme Court reversed the Ninth Circuit’s decision, and held that the search of the text messages was not excessive in scope. The Court stated that “[a]lthough as a general matter, warrantless searches “are per se unreasonable under the Fourth Amendment,” there are “a few specifically established and well-delineated exceptions” to that general rule. The Court has held that the “‘special needs’ of the workplace justify one such exception.” The search in this case, the Court determined, was reasonably related to workplace needs, and not excessively intrusive.