Lead Opinion
delivered the opinion of the Court.
This case involves the assertion by a government employer of the right, in circumstances to be described, to read text messages sent and received on a pager the employer owned and issued to an employee. The employee contends that the privacy of the messages is protected by the ban on “unreasonable searches and seizures” found in the Fourth Amendment to the United States Constitution, made applicable to the States by the Due Process Clause of the Fourteenth Amendment. Mapp v. Ohio,
I
A
The city of Ontario (City) is a political subdivision of the State of California. The case arose out of incidents in 2001 and 2002 when respondent Jeff Quon was employed by the Ontario Police Department (OPD). He was a police sergeant and member of OPD’s Special Weapons and Tactics (SWAT) Team. The City, OPD, and OPD’s Chief, Lloyd Scharf, are petitioners here. As will be discussed, two respondents share the last name Quon. In this opinion “Quon” refers to Jeff Quon, for the relevant events mostly revolve around him.
In October 2001, the City acquired 20 alphanumeric pagers capable of sending and receiving text messages. Arch Wireless Operating Company provided wireless service for the pagers. Under the City’s service contract with Arch Wireless, each pager was allotted a limited number of characters
Before acquiring the pagers, the City announced a “Computer Usage, Internet and E-Mail Policy” (Computer Policy) that applied to all employees. Among other provisions, 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 or confidentiality when using these resources.” App. to Pet. for Cert. 151, 152. In March 2000, Quon signed a statement acknowledging that he had read and understood the Computer Policy.
The Computer Policy did not apply, on its face, to text messaging. Text messages share similarities with e-mails, but the two differ in an important way. In this ease, for instance, an e-mail sent on a City computer was transmitted through the City’s own data servers, but a text message sent on one of the City’s pagers was transmitted using wireless radio frequencies from an individual pager to a receiving station owned by Arch Wireless. It was routed through Arch Wireless’ computer network, where it remained until the recipient’s pager or cellular telephone was ready to receive the message, at which point Arch Wireless transmitted the message from the transmitting station nearest to the recipient. After delivery, Arch Wireless retained a copy on its computer servers. The message did not pass through computers owned by the City.
Although the Computer Policy did not cover text messages by its explicit terms, the City made clear to employees, including Quon, that the City would treat text messages the same way as it treated e-mails. At an April 18, 2002, staff meeting at which Quon was present, Lieutenant Steven Duke, the OPD officer responsible for the City’s contract
Within the first or second billing cycle after the pagers were distributed, Quon exceeded his monthly text message character allotment. Duke told Quon about the overage, and reminded him that messages sent on the pagers were “considered e-mail and could be audited.” Id., at 40. Duke said, however, that “it was not his intent to audit [an] employee’s text messages to see if the overage [was] due to work related transmissions.” Ibid. Duke suggested that Quon could reimburse the City for the overage fee rather than have Duke audit the messages. Quon wrote a check to the City for the overage. Duke offered the same arrangement to other employees who incurred overage fees.
Over the next few months, Quon exceeded his character limit three or four times. Each time he reimbursed the City. Quon and another officer again incurred overage fees for their pager usage in August 2002. At a meeting in October, Duke told Scharf that he had become “‘tired of being a bill collector.’” Id., at 91. Scharf decided to determine whether the existing character limit was too low — that is, whether officers such as Quon were having to pay fees for sending work-related messages — or if the overages were for personal messages. Scharf told Duke to request transcripts of text messages sent in August and September by Quon and the other employee who had exceeded the character allowance.
At Duke’s request, an administrative assistant employed by OPD contacted Arch Wireless. After verifying that the City was the subscriber on the accounts, Arch Wireless provided the desired transcripts. Duke reviewed the tran
The officer in charge of the internal affairs review was Sergeant Patrick McMahon. Before conducting a review, McMahon used Quon’s work schedule to redact the transcripts in order to eliminate any messages Quon sent while off duty. He then reviewed the content of the messages Quon sent during work hours. McMahon’s report noted that Quon sent or received 456 messages during work hours in the month of August 2002, of which no more than 57 were work related; he sent as many as 80 messages during a single day at work; and on an average workday, Quon sent or received 28 messages, of which only 3 were related to police business. The report concluded that Quon had violated OPD rules. Quon was allegedly disciplined.
B
Raising claims under Rev. Stat. § 1979, 42 U. S. C. § 1983; 18 U. S. C. § 2701 et seq., popularly known as the Stored Communications Act (SCA); and California law, Quon filed suit against petitioners in the United States District Court for the Central District of California. Arch Wireless and an individual not relevant here were also named as defendants. Quon was joined in his suit by another plaintiff who is not a party before this Court and by the other respondents, each of whom exchanged text messages with Quon during August and September 2002: Jerilyn Quon, Jeff Quon’s then-wife, from whom he was separated; April Florio, an OPD employee with whom Jeff Quon was romantically involved; and Steve Trujillo, another member of the OPD SWAT Team.
The parties filed cross-motions for summary judgment. The District Court granted Arch Wireless’ motion for summary judgment on the SCA claim but denied petitioners’ motion for summary judgment on the Fourth Amendment claims. Quon v. Arch Wireless Operating Co.,
The District Court held a jury trial to determine the purpose of the audit. The jury concluded that Scharf ordered the audit to determine the efficacy of the character limits. The District Court accordingly held that petitioners did not violate the Fourth Amendment. It entered judgment in their favor.
The United States Court of Appeals for the Ninth Circuit reversed in part. Quon v. Arch Wireless Operating Co.,
The Ninth Circuit denied a petition for rehearing en banc. Quon v. Arch Wireless Operating Co.,
This Court granted the petition for certiorari filed by the City, OPD, and Chief Scharf challenging the Court of Appeals’ holding that they violated the Fourth Amendment.
II
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 is well settled that the Fourth Amendment’s protection extends beyond the sphere of criminal investigations. Camara v. Municipal Court of City and County of San Francisco,
The Court discussed this principle in O’Connor. There a physician employed by a state hospital alleged that hospital officials investigating workplace misconduct had violated his Fourth Amendment rights by searching his office and seizing personal items from his desk and filing cabinet. All Members of the Court agreed with the general principle that “[individuals do not lose Fourth Amendment rights merely because they work for the government instead of a private employer.”
The O’Connor Court did disagree on the proper analytical framework for Fourth Amendment claims against government employers. A four-justice plurality concluded that the correct analysis has two steps. First, because “some government offices may be so open to fellow employees or the public that no expectation of privacy is reasonable,” id., at 718, a court must consider “[t]he operational realities of the workplace” in order to determine whether an employee's Fourth Amendment rights are implicated, id., at 717. On this view, “the question whether an employee has a reason
Justice Scalia, concurring in the judgment, outlined a different approach. His opinion 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. But he 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.
Later, in the Von Raab decision, the Court explained that “operational realities” could diminish an employee’s privacy expectations, and that this diminution could be taken into consideration when assessing the reasonableness of a workplace search.
A
Before turning to the reasonableness of the search, it is instructive to note the parties’ disagreement over whether Quon had a reasonable expectation of privacy. The record does establish that OPD, at the outset, made it clear that pager messages were not considered private. The City’s Computer Policy stated that “[u]sers should have no expectation of privacy or confidentiality when using” City computers. App. to Pet. for Cert. 152. Chief Scharf’s memo and Duke’s statements made clear that this official policy extended to text messaging. The disagreement, at least as respondents see the case, is over whether Duke’s later statements overrode the official policy. Respondents contend that because Duke told Quon that an audit would be unnecessary if Quon paid for the overage, Quon reasonably could expect that the contents of his messages would remain private.
At this point, were we to assume that inquiry into “operational realities” were called for, compare O’Connor,
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. As one amici brief notes, many employers expect or at least tolerate personal use of such equipment by employees because it often increases worker efficiency. See Brief for Electronic Frontier Foundation et al. 16-20. Another ami-cus points out that the law is beginning to respond to these developments, as some States have recently passed statutes requiring employers to notify employees when monitoring their electronic communications. See Brief for New York Intellectual Property Law Association 22 (citing Del. Code Ann., Tit. 19, §705 (2005); Conn. Gen. Stat. Ann. §31-48d (West 2003)). At present, it is uncertain how workplace norms, and the law’s treatment of them, will evolve.
Even if the Court were certain that the O’Connor plurality’s approach were the right one, the Court would have difficulty predicting how employees’ privacy expectations will be shaped by those changes or the degree to which society
A broad holding concerning employees’ privacy expectations vis-á-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. For present purposes we assume several propositions, arguendo: First, Quon had a reasonable expectation of privacy in the text messages sent on the pager provided to him by the City; second, petitioners’ review of the transcript constituted a search within the meaning of the Fourth Amendment; and third, the principles applicable to a government employer’s search of an employee’s physical office apply with at least the same force when the employer intrudes on the employee’s privacy in the electronic sphere.
B
Even if Quon had a reasonable expectation of privacy in his text messages, petitioners did not necessarily violate the Fourth Amendment by obtaining and reviewing the transcripts. Although 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. Katz, supra, at 357. The Court has held that the “ ‘special needs’ ” of the workplace
Under the approach of the O’Connor plurality, when conducted for a “noninvestigatory, work-related purpos[e]” or for the “investigatio[n] of work-related misconduct,” a government employer’s warrantless search is reasonable if it 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.
The search was justified at its inception because there were “reasonable grounds for suspecting that the search [was] necessary for a noninvestigatory work-related purpose.” Id., at 726. As a jury found, Chief Scharf ordered the search in order to determine whether the character limit on the City’s contract with Arch Wireless was sufficient to meet the City’s needs. This was, as the Ninth Circuit noted, a “legitimate work-related rationale.”
As for the scope of the search, 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. The review was also not “‘excessively intrusive.’” O’Connor, supra, at 726 (plurality opinion). Although Quon had gone over his monthly allotment a number of times, OPD requested transcripts for only the months of August and September 2002. While it may have been reasonable as well for OPD to review transcripts of all the months in which Quon exceeded his
Furthermore, and again on the assumption that Quon had a reasonable expectation of privacy in the contents of his messages, the extent of an expectation is relevant to assessing whether the search was too intrusive. See Von Raab, supra, at 671; cf. Vernonia School Dist. 47J v. Acton,
From OPD's perspective, the fact that Quon likely had only a limited privacy expectation, with boundaries that we need not here explore, lessened the risk that the review would intrude on highly private details of Quon’s life. OPD’s audit of messages on Quon’s employer-provided pager was not nearly as intrusive as a search of his personal e-mail account
The Court of Appeals erred in finding the search unreasonable. It pointed to a “host of simple ways to verify the efficacy of the 25,000 character limit . . . without intruding on [respondents’] Fourth Amendment rights.”
This approach was inconsistent with controlling precedents. This Court has “repeatedly refused to declare that only the ‘least intrusive’ search practicable can be reasonable under the Fourth Amendment.” Vernonia, supra, at 663; see also, e.g., Board of Ed. of Independent School Dist. No. 92 of Pottawatomie Cty. v. Earls,
Respondents argue that the search was per se unreasonable in light of the Court of Appeals’ conclusion that Arch Wireless violated the SCA by giving the City the transcripts of Quon’s text messages. The merits of the SCA claim are not before us. But even if the Court of Appeals was correct to conclude that the SCA forbade Arch Wireless from turning over the transcripts, it does not follow that petitioners’ actions were unreasonable. Respondents point to no authority for the proposition that the existence of statutory protection renders a search per se unreasonable under the Fourth Amendment. And the precedents counsel otherwise. See Virginia v. Moore,
Because 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’Con-nor plurality.
C
Finally, the Court must consider whether the search violated the Fourth Amendment rights of Jerilyn Quon, Florio, and Trujillo, the respondents who sent text messages to Jeff Quon. Petitioners and respondents disagree whether a sender of a text message can have a reasonable expectation of privacy in a message he knowingly sends to someone’s employer-provided pager. It is not necessary to resolve this question in order to dispose of the case, however. Respondents argue that because “the search was unreasonable as to Sergeant Quon, it was also unreasonable as to his correspondents.” Brief for Respondents 60 (some capitalization omitted; boldface deleted). They make no corollary argument that the search, if reasonable as to Quon, could nonetheless be unreasonable as to Quon’s correspondents. See id., at 65-66. In light of this litigating position and the Court’s conclusion that the search was reasonable as to Jeff Quon, it necessarily follows that these other respondents cannot prevail.
* * *
Because the search was reasonable, petitioners did not violate respondents’ Fourth Amendment rights, and the court below erred by concluding otherwise. The judgment of the Court of Appeals for the Ninth Circuit is reversed, and the ease is remanded for further proceedings consistent with this opinion.
It is so ordered.
Concurrence Opinion
concurring.
Although I join the Court’s opinion in full, I write separately to highlight that the Court has sensibly declined to resolve whether the plurality opinion in O’Connor v. Ortega,
For the reasons stated at page 762 of the Court’s opinion, it is clear that respondent Jeff Quon, as a law enforcement officer who served on a SWAT Team, should have understood that all of his work-related actions — including all of his communications on his official pager — were likely to be subject to public and legal scrutiny. He therefore had only a limited expectation of privacy in relation to this particular audit of his pager messages. Whether one applies the reasoning from Justice O’Connor’s opinion, Justice Scalia’s concurrence, or Justice Blackmun’s dissent
Notes
1 do not contend that Justice Blackmun’s opinion is controlling under Marks v. United States,
Concurrence Opinion
concurring in part and concurring in the judgment.
I join the Court’s opinion except for Part III-A. I continue to believe that the “operational realities” rubric for determining the Fourth Amendment’s application to public employees invented by the plurality in O’Connor v. Ortega,
Here, however, there is no need to answer that threshold question. Even accepting at face value Quon’s and his co-plaintiffs’ claims that the Fourth Amendment applies to their messages, the city’s search was reasonable, and thus did not violate the Amendment. See id., at 726 (plurality opinion); id., at-732 (Scalia, J., concurring in judgment). Since it is unnecessary to decide whether the Fourth Amendment applies, it is unnecessary to resolve which approach in O’Connor controls: the plurality’s or mine.
Worse still, the digression is self-defeating. Despite the Court’s insistence that it is agnostic about the proper test, lower courts will likely read the Court’s self-described “instructive” expatiation on how the O’Connor plurality's approach would apply here (if it applied), ante, at 758-760, as a heavy-handed hint about how they should proceed. Litigants will do likewise, using the threshold question whether the Fourth Amendment is even implicated as a basis for bombarding lower courts with arguments about employer policies, how they were communicated, and whether they were authorized, as well as the latest trends in employees’ use of
The Court’s inadvertent boosting of the O’Connor plurality’s standard is all the more ironic because, in fleshing out its fears that applying that test to new technologies will be too hard, the Court underscores the unworkability of that standard. Any rule that requires evaluating whether a given gadget is a “necessary instrumen[t] for self-expression, even self-identification,” on top of assessing the degree to which “the law’s treatment of [workplace norms has] evolve[d],” ante, at 759-760, is (to put it mildly) unlikely to yield objective answers.
I concur in the Court’s judgment.
Despite his disclaimer, ante, at 766 and this page, n. (concurring opinion), Justice Stevens’ concurrence implies, ante, at 765-766 and this page, that it is also an open question whether the approach advocated by Justice Blackmun in his dissent in O’Connor is the proper stand