Spicy little conversations: technology in the workplace and a call for a new cross-doctrinal jurisprudence.

• Author: Lalli, Marissa A.
• Position: NOTES

TABLE OF CONTENTS INTRODUCTION I. THE NEW REALITY: "BUSINESS--PERSONAL ELISION" IN THE WORKPLACE II. FOURTH AMENDMENT BACKGROUND III. CITY OF ONTARIO V. QUON FACTS AND ISSUES IV. THE PROBLEM: LOWER COURTS' DANGEROUS APPLICATION OF THE O'CONNOR V. ORTEGA TEST A. The Employer: The Dispositive Effect of Employer Policies in Employee Privacy Disputes B. The Nature of the Employer-Provided Device: How the Transmission Process Risks Public Disclosure, and in Turn, a Reasonable Expectation of Privacy C. The Nature of the Job: How Sergeant Quon's Position as a Government Employee on a SWAT Team Diminishes His Reasonable Expectation of Privacy 1. Public Employees in Positions of Trust 2. Public Disclosure Laws 3. The Significance of Quon's Position of Trust and the Public Disclosure Laws V. THE CROSS-DOCTRINAL SOLUTION: How LESSONS FROM CRIMINAL LAW, TAX POLICY AND LANDLORD--TENANT LAW CAN ENHANCE AND INFORM A PUBLIC EMPLOYEE'S REASONABLE EXPECTATION OF PRIVACY A. When the Searcher is a Police Officer and the Searched is a Suspect, Courts Readily Find a Reasonable Expectation of Privacy in Cell Phones and Pagers 1. The Legacy of "Enhanced Perception" Cases 2. Searches of Cell Phones Under the Suspect's "Dominion and Control" During an Arrest B. How Owing Taxes on His Mixed Use Pager Strengthens Quon's Case for Privacy C. Outright Payment in the Form of Overage Charges Strengthens Quon's Case for Privacy VI. THE SUPREME COURT'S ROLE IN SETTING A STANDARD THAT CAN KEEP PACE WITH TECHNOLOGICAL ADVANCES CONCLUSION INTRODUCTION

The last time the nine Supreme Court Justices considered employee privacy rights, the workplace was largely confined to the four walls of a building. The Court reflected on a vastly different workplace, however, when it heard oral argument for City of Ontario v. Quon (Quon III). (1) In a decision released last summer, the Court considered whether Sergeant Jeff Quon, a Special Weapons and Tactics (SWAT) team member, had a "reasonable expectation of privacy" in text messages transmitted on his SWAT pager after receiving mixed guidance from his superiors as to the messages' privacy status. (2) The City of Ontario "police department ha[s] an official no-privacy policy" that strictly limited personal use, "but a non-policy-making lieutenant announced an informal policy of allowing some personal use of the pagers." (3) Quon's text messages were of a personal and sometimes sexually explicit nature, characterized by Justice Antonin Scalia as "spicy" little conversations. (4)

The Supreme Court, however, failed to decide the central employee privacy question. Instead, the Court assumed arguendo that Quon had a reasonable expectation of privacy in text messages sent on the employer-issued device. (5) Unsatisfied with the outdated 1987 O'Connor v. Ortega (6) test for determining privacy interests in the workplace, the cautious Court refused to decide Quon's privacy question. But, in doing so, the Supreme Court's decision "place[d] the ball firmly back into the hands of lower federal and state courts" where the pro-employer Ortega precedent still applies. (7)

Over twenty years ago, Ortega created a new standard--the "operational realities of the workplace" (8)--which has endangered future employee privacy rights as applied in subsequent lower court decisions. The Ortega Court decided that employees do not lose the protection of the Fourth Amendment simply because they work for the government. (9) But, "the operational realities of the workplace"--specifically, office policies and actual practices--"may make some employees' expectations of privacy unreasonable when an intrusion is by a supervisor rather than a law enforcement official." (10)

Even though the Court in Ortega ultimately found in favor of the employee, (11) the Court's test creates "a perverse incentive for employers" to adopt a practice of regular electronic surveillance and a policy of no privacy in the future because the outcome hinged on existing employer policies. (12) In fact, the Court found a reasonable expectation of privacy in Ortega's workspace in part because the hospital lacked a no-privacy policy. (13)

The opportunity for similar privacy intrusions by employers has multiplied in the more than twenty years since Ortega with the growing popularity of employer-provided personal communication devices such as cell phones, smart phones, Blackberries, iPhones, and pagers, in addition to laptop computers. (14) Now, courts are applying Ortega's "operational realities of the workplace" standard to determine when employees have a privacy expectation in the contents of their messages sent and received using these electronic devices. (15) This is a far cry from how the Court defined the "workplace" in Ortega: "those areas and items that are related to work and are generally within the employer's control ... for example, the hallways, cafeteria, offices, desks, and file cabinets." (16) The Supreme Court had an opportunity to adapt the outdated Ortega test to "'the new generation of communications technology'" (17) when it decided Quon. Instead, the Court sidestepped the most important question regarding employee privacy rights in electronic communications.

This Note argues that the lower courts' application of Ortega's "operational realities of the workplace" test vests a dangerous amount of discretion in government employers. The lower courts have allowed the standard to ossify into a rote application of the employer's written policies in determining Fourth Amendment privacy protections (or lack thereof). (18) To improve this standard and update it for the twenty-first century, the Court must engage in a flexible, cross-doctrinal inquiry in addition to the existing "realities of the workplace" rules. In taking a cross-doctrinal approach, the Court would be better prepared to recognize the unique role of virtual devices and determine what privacy expectations "society is prepared to recognize as 'reasonable.'" (19) After all, the new reality of virtual communications is one of the key "operational realities of the workplace."

In deciding privacy questions, the Supreme Court should borrow from concepts outside the employment context, such as criminal investigatory procedure, tax policy, and landlord-tenant law. Notably, in all of these situations courts have struggled to answer the questions of who has possession of the searched item and what rights or obligations consequently attach. First, in criminal contexts, courts have held that a person in possession of a personal communications device has a reasonable expectation of privacy in messages stored on the device, even though he does not own the equipment. (20) Second, according to the Internal Revenue Code, an employee who owes taxes on the personal use of an employer-provided device enjoys increased personal rights. (21) Third, just as a rent-paying tenant has an increased expectation of privacy, so could an employee who pays overage charges on a cell phone or pager. (22) Drawing analogies to areas of the law familiar to most citizens would grant the Court greater flexibility in preventing easy employer surveillance and "Big Brother" policies from making employee privacy obsolete.

Part I of this Note provides an introduction to the unique privacy problem presented by employer-provided personal communication devices. Part II reviews the basic Fourth Amendment rules for "searches" outside of criminal investigations. Part III presents the facts and issues of the recently decided Quon case, an example of "business-personal elision." Part IV analyzes three workplace-specific rules frequently applied in determining reasonable expectations of privacy under the Ortega test: (1) the employer policy, (2) the nature of the device's transmission technology, and (3) the nature of the employee's government position, ultimately concluding that such a narrow test dangerously diminishes the possibility of a court finding an employee privacy right. Part V encourages the Court to widen its lens to criminal, tax, and landlord-tenant law analogies in order to determine whether society recognizes a reasonable expectation of privacy in information stored on a device the user did not own. Part VI discusses the theory behind devising a standard that ensures that lower courts also give social privacy expectations room to evolve.

Justice Blackmun's Ortega dissent declared, "[A] public employee's expectation of privacy in the workplace should be carefully safeguarded and not lightly set aside." (23) This Note will propose how best to safeguard these important rights.

1. THE NEW REALITY: "BUSINESS--PERSONAL ELISION" IN THE WORKPLACE

   In the past few years there has been an explosion of electronic communication. A 2009 survey reported that, on average, 4.1 billion text messages are transmitted in the United States every day. (24) In just the second quarter of 2008, "U.S. mobile subscribers sent and received about 357 text messages per month" in comparison to only 204 phone calls. (25) By 2012, at companies of one thousand or more employees, nearly three-quarters of corporate employees will use smart phones for work purposes. (26) Furthermore, seventy-nine percent of small and midsize businesses identify cell phones as the number one mobile device. (27) Additionally, "[forty-two] percent of small business owners would have difficulty even surviving without wireless technologies," according to a 2007 survey. (28)

   These devices are causing what I call a "business-personal elision"--a situation in which employees use employer-provided technology for both work and private communications, often with the approval of their employers who may allow their employees to share the costs. (29)

   Many market forces have conspired to create this business--personal elision. Employers benefit from these devices because they increase productivity, and their "employees value[] the ability to work remotely." (30) Thus, many government...