Did My Boss Just Read That? Applying a Coding vs. Content Distinction in Determining Government Employees' Reasonable Expectation of Privacy in Employer-provided Electronic Communication Devices After City of Ontario v. Quon, 130 S. Ct. 2619 (2010)

• Publication year: 2021
• Citation: Vol. 90

90 Nebraska L. Rev. 559. Did My Boss Just Read That? Applying a Coding vs. Content Distinction in Determining Government Employees' Reasonable Expectation of Privacy in Employer-Provided Electronic Communication Devices After City of Ontario v. Quon, 130 S. Ct. 2619 (2010)

Did My Boss Just Read That? Applying a Coding vs. Content Distinction in Determining Government Employees' Reasonable Expectation of Privacy in Employer-Provided Electronic Communication Devices After City of Ontario v. Quon, 130 S. Ct. 2619 (2010)

Note(fn*)

TABLE OF CONTENTS

I. Introduction .......................................... 560

II. Background ........................................... 562
A. Fourth Amendment Protections of Reasonable Expectations of Privacy ............................ 562
1. Katz and Smith : Adoption of the Reasonable Expectation of Privacy Standard ............... 563
2. The Fourth Amendment Protects Searches of Government Employees by Their Employers . . . . 565
3. Advances in Electronic Communication: Application of the Coding vs. Content Distinction .................................... 566
4. Government Employees and the Coding vs. Content Distinction ............................ 567
B. Supreme Court's Opportunity to Address Expectation of Privacy in Modern Electronic Communications in City of Ontario v. Quon ........ 569
1. Background and Procedural History ............ 569
2. The City's Search was Reasonable, Regardless of Whether Quon Had a Reasonable Expectation of Privacy ........................................ 570
3. Scalia's Concurrence: Should the Fourth Amendment Apply to Messages Sent on Employer-Provided Devices? ................... 571

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III. Analysis .............................................. 572
A. Cell Phone Use Is on the Rise ..................... 573
B. Privacy Policies Are Not Sufficient to Define Employees' Reasonable Expectations of Privacy . . . . 576
C. Despite the Court Claiming It Did Not Discuss the Reasonableness of the Privacy Interest, It Actually Did So in Its Discussion of the Reasonableness of the Search ........................................ 577
D. The Supreme Court Should Have Adopted a Bright-Line Rule Applying the Fourth Amendment to All Government Employees' Electronic Communications .................................. 578
1. Lay People's Views of What Is a Reasonable Search Can Help Inform Courts' Analyses of Reasonable Expectations ....................... 579
2. A Bright-Line Rule Is Necessary to Guide Lower Courts ......................................... 581
3. A Bright-Line Rule Applying to All Communication Is Necessary Because There Is No Real Distinction Between the Different Types of Communication ............................. 581
4. The Coding vs. Content Distinction Should Hold True For Government Employer's Searches ..... 582
5. Potential Downfalls Do Not Outweigh the Utility of a Bright-Line Rule .......................... 583
E. Using the Bright-Line Rule, Quon Would Have Come Out the Same ............................... 584

IV. Conclusion ............................................ 584

I. INTRODUCTION

Government employees have a fundamental right to be free from unreasonable searches and seizures;(fn1) however, that right is not absolute.

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Courts have granted government employees' Fourth Amendment protection over their offices,(fn2) drug and alcohol urine testing,(fn3) and personal computers storing work-related files.(fn4) On the other hand, courts have not extended Fourth Amendment protection from government employers searching files downloaded to employees' work computers over the work-provided internet server(fn5) and documents stored in a locked file cabinet in the employees' offices.(fn6)

One basic question that must be answered in any Fourth Amendment analysis is, first and foremost, whether the Fourth Amendment applies to the search at issue. In Katz v. United States,(fn7) Justice Harlan's concurring opinion outlined the prevailing two-part test to determine whether the Fourth Amendment applies to a search or seizure: (1) the individual must have a subjective expectation of privacy, and (2) that expectation of privacy must be one that society is ready to recognize as reasonable.(fn8) This test is a balancing test, weighing the government employee's liberty interest in freedom from unreasonable searches and seizures against the government interest in conducting the search.(fn9) Unfortunately, the Supreme Court has given little guidance in how lower courts should weigh these two interests.

With the rapidly increasing prevalence of cell phones, e-mail, and other forms of electronic communication,(fn10) courts are forced to answer the question of whether individuals have a reasonable expectation of privacy in electronic communication devices. Courts increasingly face situations where public employers search their employees' work-provided communication devices, and the employees claim a violation of an expectation of privacy.(fn11)

Historically, the Court has distinguished information available to third parties from information intended only for the recipient's eyes, which the sender attempted to keep secret from others. In 1877, the Supreme Court applied the Fourth Amendment to sealed letters sent via the United States Postal Service.(fn12) In Ex parte Jackson, the Supreme Court determined an individual who mails a letter has a reasonable expectation of privacy in the content of the sealed letter; on

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the other hand, the individual has no reasonable expectation of privacy in the addressing information on the outside of the envelope.(fn13) In 1979, the Court applied a similar distinction in determining an individual does have a reasonable expectation of privacy in the content of telephone calls, but not the number he or she has dialed.(fn14) With technology advancing, the question has arisen of whether a similar distinction should apply to determine the reasonableness of a privacy interest attached to electronic communications.(fn15)

The United States Supreme Court faced this question in City of Ontario v. Quon,(fn16) in which the Court held the Fourth Amendment does not protect an employee's text messages from a public employer's search.(fn17) Quon, a police officer in the City of Ontario, claimed his supervisors violated his reasonable expectation of privacy when they searched the content of his text messages sent on his employer-provided text messaging pager.(fn18) The Court declined to determine whether Quon, and by extension other public employees, would have a reasonable expectation of privacy in such devices.(fn19) Instead, the Court determined that, regardless of Quon's expectation of privacy, the City of Ontario was reasonable in searching the pager.(fn20)

This Note begins by exploring the relevant history of the Fourth Amendment search and seizure provision as applied to communications and government employers. Part III discusses the Court's opportunity in Quon to apply a set standard to text messages, and argues the Court should make more definitive statements determining government employees' privacy interests in the future. Part IV gives recommendations for lower courts in handling the nebulous area left by the decision in Quon. The Court should follow the standard first espoused in Ex parte Jackson : individuals have a reasonable expectation of privacy in the content of their text messages, but not the addressing information.

II. BACKGROUND

A. Fourth Amendment Protections of Reasonable Expectations of Privacy

The Fourth Amendment states the following: "The right of the people to be secure in their persons, houses, papers, and effects, against

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unreasonable searches and seizures, shall not be violated."(fn21) This protects individuals from unreasonable government intrusion into certain areas.(fn22) The Supreme Court has faced comparable issues in determining what possessions or areas the Fourth Amendment protects.(fn23)

1. Katz and Smith: Adoption of the Reasonable Expectation of Privacy Standard

In Katz v. United States, the Court analyzed whether the police violated the defendant's Fourth Amendment right to freedom from unreasonable searches and seizures when they placed a wiretap on the phone booth the defendant used.(fn24) The police used the wiretap to record Katz's private phone conversations.(fn25) The Court concluded, even though "the Fourth Amendment cannot be translated into a general constitutional 'right to privacy,'"(fn26) it "protects people, not places."(fn27) Katz demonstrates that the Fourth Amendment protections may apply to government searches using electronic surveillance, not just a physical intrusion. The Court determined Katz had a reasonable expectation of privacy in his private telephone conversations, and thus a recording of those conversations without the proper warrant was un-constitutional.(fn28) Katz purposely kept the content of his private conversations from being overheard by others when he closed the door to the phone booth and therefore the Fourth Amendment protected the content of his conversation. Had Katz made his call from home, the Fourth Amendment also would have protected the content of his communications.(fn29)

Justice Harlan, in his concurring opinion, outlined a two-part test to determine whether the Fourth Amendment applies to a government search: "first that a person have exhibited an actual...