The Supreme Court this week found that a California police department was within its rights when it reviewed text messages on an employee's city-issued pager, and disciplined him for sending racy texts while on duty.

That employee, Jeff Quon, alleged in a lawsuit that the Ontario, Calif. police department (ODP) violated his Fourth Amendment rights against unreasonable search and seizure. The city's wireless provider, Arch Wireless, also violated the Stored Communications Act by handing over his records to the city, Quon said.

While an appeals court ruled in Quon's favor, the Supreme Court reversed that decision, and found that Ontario did not violate Quon's rights. The department's goal in pulling employee records was to determine if monthly text message limits should be increased; a reasonable move by a city government, the court found.

The case dates back to 2001, which might explain the use of a pager. In October 2001, Ontario purchased 20 pagers that sent and received text messages so officers could communicate on duty. Quon, who was a police sergeant and member of the department's SWAT team, received one of the devices.

Users could send a certain amount of texts for a flat fee; any additional texts incurred per-text charges. After several months, Quon and other officers started going over their limits. This prompted Lieutenant Steven Duke to remind officers of a 2000 computer policy everyone had signed that said "users should have no expectation of privacy or confidentiality when using these resources," and could be subject to an audit.

While that policy did not explicitly relate to text messages, Duke told officers during an April 2002 meeting at which Quon was present that their text messages were considered e-mail messages and could be audited. He put that policy into writing later that month.

To avoid an audit, Duke worked out a deal under which Quon and other officers would pay the city for the overage charges. Over the next few months, Quon and another officer went over their limits, and paid the city for those texts.

By October 2002, Duke told Chief Lloyd Scharf that he was tired of being a bill collector. Scharf decided to investigate whether the current limit on pager text messages was too low. Were officers paying the city for work-related text messages or using work devices for personal messages?

Chief Scharf asked Arch Wireless to provide pager transcripts from August and September 2002. The internal affairs officer in charge of the review, Sergeant Patrick McMahon, discarded the messages that Quon sent while off duty, but still found that on the average work day, Quon sent 28 messages – only three of which were work-related. In addition, many of the messages sent on the device were sexually explicit.

As a result, Quon was disciplined, though the summary does not provide details on what that entailed.

It was apparently enough to prompt a lawsuit. Quon – joined by his wife, a co-worker with whom he allegedly had a romantic relationship, and another SWAT team member with whom Quon had exchanged texts – filed suit against the city, alleging a violation of their rights.

Supreme Court weighs in

The case escalated to the Supreme Court, which ruled in the city's favor this week.

"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," the court wrote in its opinion.

Obtaining the text message transcripts without a warrant was reasonable because "it was motivated by a legitimate work-related purpose, and because it was not excessive in scope," the court said.

Justices pointed to the fact that Chief Scharf only ordered the audit to determine if the city should increase its text message limit, and he only asked for records over a two-month period, despite the fact that the officers had been using their pagers for one year.

"The city and OPD had a legitimate interest in ensuring that employees were not being forced to pay out of their own pockets for work-related expenses, or, on the other hand, that the city was not paying for extensive personal communications," the court said. "Reviewing the transcripts was an efficient and expedient way to determine whether either of these factors caused Quon's overages."

The decision also relates to the other people named in the case because, given the court's ruling, "these other respondents cannot prevail."

The court noted that the evolving nature of technology means that it must proceed with caution on future communications-related cases, and that this case might not exactly set a precedent when it comes to Fourth Amendment complaints.

"The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear," the justices said.

The fact that cell phones and text messages are so pervasive in society now means that some people might consider them essential for self-expression or self-identification, which "might strengthen the case for an expectation of privacy," the court said.

However, given that phones are now much more affordable, "one could counter that employees who need cell phones or similar devices for personal matters can purchase and pay for their own," they concluded. "And employer policies concerning communications will of course shape the reasonable expectations of their employees, especially to the extent that such policies are clearly communicated."