Alaska Employment Law

The United States Supreme Court issued an opinion yesterday (June 17, 2010) reversing the Ninth Circuit in Quon v. Arch Wireless, a privacy rights case involving text messaging and police use of cell phones and pagers. The Alaska Employment Law Blog  posted a summary of the case in February 2009 and again later in December 2009 after review was accepted.

As predicted, the Court reversed, largely relying upon the principles discussed in the plurality opinion in O’Connor v. Ortega, 480 U.S. 709 (1987). Under O’Connor, public employees’ privacy rights are subject to an overall general reasonableness test that tracks current Fourth Amendment doctrine. In order to pass constitutional scrutiny, a search need not employ the least intrusive or even less intrusive means or methods to accomplish its goal. Instead, a search need only be reasonable under all of the circumstances.

The result here seems undeniably correct.   Police officers on a SWAT team do not have a reasonable expectation of privacy in text messages sent on a police-issued pagers that are restricted to official use. Moreover, an audit of text messages is not unreasonable particularly when, as here, it was conducted for administrative purposes (to determine if existing character limits were sufficient for work-related purposes).

The Court did not resolve a long-standing question—whether or not the two-part “operational realities” test set forth by the plurality in O’Connor is or is not the proper test to apply. Under the “operational realities” test, a court first looks at the workplace, because some workplaces are so open to other employees or the public such that no reasonable expectation of privacy could ever exist. If a court concludes that a reasonable expectation of privacy exists, the employer’s intrusion is examined under a general reasonableness standard. Alternate tests were recommended in O’Connor by Justices Blackmun and Scalia that did not garner sufficient support. The Court did not resolve whether or not the “operational realities” test remained valid because the search that occurred here was reasonable under any analysis.

Justices Stevens and Scalia filed brief concurring opinions addressing analytical flaws in O’Connor and procedural questions concerning its interpretation.